UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


HORNBOOK  CASE  SERIES 


ON 


TORTS 


BY  H.  GERALD  CHAPIN,  LL.  M. 

"i 

PROFESSOR  OF  LAW  IN  FORDHAM  UNIVERSITY 
AND  IN   NEW  JERSEY  LAW  SCHOOL 


A  COMPANION  BOOK  TO  CHAPIN  ON  TORTS 


ST.    PAUL 

WEST   PUBLISHING   CO. 

1916 


COPYRIGHT,  1916 

BY 
WEST  PUBLISHING  COMPANY 

(OHAP.CAS.TOBTS) 


To 

Ford  ham  University  School  of  Law,  and  to 
my  fellow  members  of  the  Faculty,  this  short 
collection  of  cases  is  respectfully  dedicated  by 

The  Author. 


THE  HORNBOOK  CASE  SERIES 


IT  is  the  purpose  of  the  publishers  to  supply  a  set  of  Illustrative 
Casebooks  to  accompany  the  various  volumes  of  the  Hornbook  Series, 
to  be  used  in  connection  with  the  Hornbooks  for  instruction  in  the 
classroom.  The  object  of  these  Casebooks  is  to  illustrate  the  prin- 
ciples of  law  as  set  forth  and  discussed  in  the  volumes  of  the  Horn- 
book Series.  The  text-book  sets  forth  in  a  clear  and  concise  manner 
the  principles  of  the  subject;  the  Casebook  shows  how  these  princi- 
ples have  been  applied  by  the  courts,  and  embodied  in  the  case  law. 
With  instruction  and  study  along  these  lines,  the  student  should  se- 
cure a  fundamental  knowledge  and  grasp  of  the  subject.  The  cases 
on  a  particular  subject  are  sufficiently  numerous  and  varied  to  cover 
the  main  underlying  principles  and  essentials.  Unlike  casebooks 
prepared  for  the  "Case  Method"  of  instruction,  no  attempt  has  been 
made  to  supply  a  comprehensive  knowledge  of  the  subject  from  the 
cases  alone.  It  should  be  remembered  that  the  basis  of  the  instruc- 
tion is  the  text-book,  and  that  the  purpose  of  these  Casebooks  is  to 
illustrate  the  practical  application  of  the  principles  of  the  law. 

WEST  PUBLISHING  COMPANY. 


TABLE  OF  CONTENTS 


Part  I 
GENERAL  PRINCIPLES 

THE  TORT  CONCEPT —  Page 

I.    The  Nature  of  a  Tort 1 

II.     Difference  between  Tort  and  Contract 1 

1.     Election  of  Remedy 8 

III.  Statutory   Torts 10 

IV.  Cases  of  Novel  Impression 16 

RESPONSIBILITY  AS  DEPENDENT  UPON  CONDITION  OF  MIND— 

I.  Voluntary  Acts. . .   21 

1.    Accident    21 

II.    Motive  27 

LIABILITY  UNDER  LEGAL  RULES  GOVERNING  CAUSE  AND  EF- 
FECT— 

I.    Proximate  Cause  in  General 31 

II.    Intervention  of  Natural  Force 35 

III.  Fright  and  Mental  Anguish 37 

IV.  Intervention  of  Voluntary  Act 44 

1.  Foreseeable  Intervention 45 

2.  Involuntary   Intervention «, 49 

DEFENSES— 

I.     Necessity    52 

II.     Acts  of  State...'. 56 

III.  Illegal  Conduct  of  Plaintiff 58 

IV.  License    60 

V.     Release  and  Covenant  not  to  Sue 61 

PARTIES— 

I.     Public    Officers 65 

1.  Judicial    Officers 65 

2.  Ministerial  Officers 76 

II.    Infants    81 

III.     Servants  and  Agents 83 

PARTIES  (Continued)— 

I.     Corporatipns    ,  91 

1.  Municipal    91 

2.  Charitable  95 

II.     Employers    99 

1.  For  Wrong  of  Servant  or  Agent 99 

2.  For  Wrong  of  Independent  Contractor 106 

III.    Joint  and  Several  Liability Ill 

1.  Single  Injury  Ill 

2.  Separate  Injuries  113 

3.  Ratification 116 

4.  Indemnity  and  Contribution  119 

CONFLICT  OF  LAWS— 

I.    Transitory  and  Local  Actions  122 

II.  Wrongf ulness  by  Lex  Loci  123 

CHAP.CAS. TORTS  (vii) 


V1U  TABLE  OF  CONTENTS 

Part  II 
SPECIFIC  TORTS 

INFRINGEMENT  OF  PERSONAL  SECURITY—  Page 

I.     Assault    125 

II.    Battery   126 

1.  Defense  of  Person 126 

2.  Defense  of  Property 128 

3.  Recaption  and  Entry   131 

(A)  Personal  Property  131 

(B)  Real  Property  . 134 

4.  Enforcement  of  Discipline ^ 137 

III.     False  Imprisonment 139 

1.    Arrest  without  Warrant 145 

(A)  For  Misdemeanor 145 

(B)  For  Felony 147 

INJURIES  TO  REPUTATION— DEFAMATION— 

I.    Publication    152 

II.     Construction  of  Language 154 

III.  Matter  defamatory  per  se 156 

1.  Imputation  of  Crime  156 

2.  Contagious  or  Infectious  Disease 160 

3.  Tendency  to  Prejudice  Party  in  Office,  Trade  or  Profession.  101 

4.  Libel   , .  164 

IV.  Defenses 167 

1.  Fair  Comment 167 

2.  Privilege    170 

(A)  Absolute  Privilege  170 

(B)  Qualified  Privilege   172 

TRESPASS— 

I.    To  Land   179 

II.    To  Chattels  181 

III.     Ablnitio 182 

CONVERSION— 

I.     Denial  of  Right  Essential 184 

II.    Nonfeasance  is  Insufficient .' 185 

III.  Exercise  of  Dominion  189 

IV.  Conversion  by  Agent 191 

V.    Unlawful  Detention 15)4 

1.  Unqualified  Refusal  194 

2.  Qualified  Refusal  198 

3.  Quantum  of  Plaintiff's  Interest 199 

4.  Offer  to  Return 200 

WASTE    j 202 

FRAUD— 

I.     Statement 205 

1.  Promise   205 

2.  Opinion    207 

3.  Concealment 209 

II.    Intent  to  Cause  Action  212 

III.  Action  by  Complainant 215 

1.    Duty  to  Investigate 218 

IV.  Falsity   222 


TABLE  OF  CONTENTS  is 

FRAUD  (Continued)—  Page 

V.     Scienter  223 

VI.     Damage 230 

SLANDER  OF  TITLE   235 

INTERFERENCE  WITH  CONTRACTUAL  RIGHTS— 

I.    Prospective  Contracts  of  Employment 237 

II.     Prospective  Contracts  not  of  Employment 239 

III.  Existing  Contracts  of  Employment 251 

IV.  Existing  Contracts  not  of  Employment 256 

INTERFERENCE  WITH  DOMESTIC  RELATIONS— 

I.     Injuries  to  Husband  263 

II.    Injuries  to  Wife 267 

III.     Injuries  to  Parent 272 

OBSTRUCTION  AND  PERVERSION  OF  LEGAL  REMEDIES— 

I.    Malicious  Prosecution    279 

1.  Nature  of  Previous  Proceeding 279 

2.  Commencement  of  Previous  Proceeding 286 

3.  Probable  Cause  for  Previous  Proceeding .' 293 

4.  Malice  in  Instituting  Previous  Proceeding 295 

5.  Termination  of  Previous  Proceeding  297 

II.     Malicious  Abuse  of  Process 297 

III.  Unauthorized  Suit  in  Another's  Name 298 

IV.  Maintenance  and  Champerty  300 

NEGLIGENCE— 

I.    Duty  of  Occupant  of  Land  303 

1.  To  Trespasser   303 

2.  To  Licensee  305 

3.  To  Invitee 308 

4.  To  Occupant  of  Adjoining  Premises ,  314 

H.    Duty  of  Maker  or  Vendor  of  Chattel 323 

III.  Duty  of  Keeper  of  Animals 330 

IV.  Standard  of  Care 332 

1.     Res  ipsa  loquitur 336 

V.     Damage  346 

VL     Contributory  Negligence  >  349 

1.  Common  Law  Rule  349 

2.  Rule  in  Admiralty 350 

3.  "The  Last  Clear  Chance" 354 

4.  Children 363 

5.  Imputed  Negligence  SG6 

NUISANCE— 

I.     Public  and  Private  Nuisance 373 

II.    Nuisance  Per  Accidents  377 

III.    Abatement    381 

CONSPIRACY  .  .  383 


TABLE    OF  CASES 


Page 

Ainsworth  v.  Lakin 319 

Alexander  v.  New  Castle 44 

Alfred  W.  Booth  &  Bro.  v.  Bur- 
gess      f 244 

Atlanta  &  F.  R,  Co.  v.  Kimberly  106 

Bair    v.    Struck 76 

Beach  v.  Hancock 125 

Beck  with    v.    Philby 147 

Beekman   v.   Marsters 251 

Bird  v.  Jones 141 

Bishop   v.    St.   Paul   City   R.   Co.    35 

Blate  v.  Third  Ave.  R.  Co 346 

Baardman    v.    Sill 194 

Boland  v.  Stanley 263 

Bond  v.  Chapin 298 

Booth  &  Bro.   v.    Burgess 244 

Boyson  v.  Thorn 256 

Bradley    v.    Fisher 65 

Bristor    v.    Burr 134 

Brooker    v.    Coffin 157 

Brown  v.   Hathaway 175 

Buckstaff   v.    Viall 164 

Bufflngton    v.    Clarke 198 

Buron    v.    Denman 56 

Butterfield  v.  Ashley 272 

Carpenter  v.  Manhattan  Life  Ins. 

Co 200 

Carr,  Sir  John,  v.  Hood 167 

Citizens'  Bank  of  St.  Louis  v. 

Tiger  Tail  Mill  &  Land  Co 199 

Collins  v.  Cronin 383 

Commonwealth  v.  Donahue 131 

Count  Joannes  v.  Burt 160 


Davis  v.   Hurt 

Deming  v.  Darling 

Dernpsey  v.  Chambers 

Derry    v.    Peek 

Dooling  v.  Budget  Pub.  Co.. 

Dougherty  v.   Stepp 

Downs  v.  Harper  Hospital. 


Eckert  v.  Long  Island  R.  Co 

Eddy  v.   Ellicottville 

Ellenwood  v.  Marietta  Chair  Co. 
Evans    v.    Waite 

CHAP.CAS. TORTS 


185 
207 
116 
223 
235 
179 
95 

49 

91 

122 

60 


Page 

Fanning   v.    Chace 158 

Filburn     v.     People's     Palace     & 

Aquarium  Co 330 

Flandermeyer   v.    Cooper 267 

Folsom  v.  Lewis 237 

Fottler  v.   Moseley 215 

Frost   v.    Eastern   R.    R 303 

Galveston  City  R.  Co.  v.  Hewitt  332 

Geer    v.    Frank 300 

Gilbert  v.   Finch 61 

Grainger  v.  Hill 297 

Griffen  v.  Manice 336 

Halberstadt    v.    New    York    Life 

Ins.    Co 286 

Hankinson    v.    Bilby 154 

Hannabalson  v.   Sessions 180 

Heeg   v.   Licht 377 

Henry  v.  Dennis 212 

Hickey  v.  Welch 39 

Hughes  v.  Atlantic  City  &  S.  R. 

Co 342 

Indermaur  v.  Dames 308 

Indianapolis  Traction  &  Terminal 
Co.    v.    Croly 354 

Jacobsen  v.   Whitely 218 

Joannes  (Count)  v.  Burt 160 

Jones   v.    Williams 381 

Kidney  v.   Stoddard 209 

Knapp  v.  Chicago,  B.  &  Q.  R.  Co.  293 
Kujek  v.  Goldman 16 

Lane  v.  Atlantic  Works 4.1 

Laverty  v.   Snethen 191 

Lawyer  v.   Fritcher 274 

Le   Forest  v.   Tolman 123 

Little    Schuylkill    Navigation,    R. 
&  Coal  Co.  v.  Richard's  Adm'r. .  113 

Lomerson    v.    Johnston 222 

Long    v.    Woodman 205 

Lough  v.  John  Davis  &  Co 85 

Luby  v.  Bennett 279 

Macauley  Bros.  v.  Tierney 239 


Xll 


TABLE    OF    CASES 


Page 
MacPherson  v.   Buick   Motor   Co.  323 

Marshall   v.   Welwood 314 

Max   Morris,   The 350 

Milwaukee    &    St.    P.    R.    Co.    v. 

Kellogg    31 

Mitchell  v.  Rochester  R.  Co 37 

Morley  v.  Chase 149 

Morris,  The  Max 350 

Newman   v.   Phillipsburgh   Horse 
Car  R.  Co 369 

Owen  v.  Ogilvie  Pub.  Co 153 

Palmeri  v.  Manhattan  R.  Co 99 

People    v.    Warren 80 

Pike  v.  Hanson 139 

Plummer  v.  Dill 305 

Proctor    v.    Adams 54 

Proffitt  v.  Henderson 202 

Pullen  v.  Glidden 295 

Rader  v.  Davis 27 

Rich  v.  New  York  Cent.  &  H.  R. 

R.    Co 1 

Rush    v.    Buckley 71 

Scott    v.    Stansfield 170 

Scribner  v.  Beach 128 

Secor    v.    Harris 161 

Shea  v.  Milford 184 

Sheehan  v.  Sturges 137 

Sheffill    v.    Van    Deusen 152 

Simpson  v.  Hill 139 

Sir  John  Carr  v.  Hood 167 

Six   Carpenters'    Case 182 


Page 

Slater  v.  Mersereau Ill 

Slayton  v.  Barry 81 

Stanley  v.  Powell 21 

Steele  v.  Marsicano 195 

Stone  v.  Dry  Dock,  E.  B.  &  B.  R. 

Co.  363 

Stranahan  Bros.  Catering  Co.  v. 

Coit 102 

Strong  v.  Campbell 13 

Surocco  v.  Geary 52 

Swim  v.  Wilson 189 

Templeton's  Adm'r  v.   Lynchburg 

Traction  &  Light  Co 349 

Terry    v.    Munger 8 

Thomastm  v.   Gray 126 

Trustees  of  Village  of  Geneva  v. 

Brush    Electric    Co 119 

Tuberville   v.    Savage 120 

Urtz  v.  New  York  Cent.  &  H.  R. 
R.  Co 230 

Van  Antwerp  v.  Linton 83 

Village  of  Geneva  v.  Brush  Elec- 
tric   Co 119 

Wason  v.  Walter. 172 

Webb    v.    Beavan 156 

Welch   v.   Wesson 58 

Wentworth   v.    Waterbury 366 

Wesson  v.   Washburn  Iron  Co...  373 

Willy  v.  Mulledy 10 

Wintringham    v.    Dafoy 181 

Yates  v.   State..  .  145 


HORNBOOK  CASES  ON  TORTS 


PART  I 

GENERAL  PRINCIPLES 


THE  TORT  CONCEPT 

I.  The  Nature  of  a  Tort  * 

II.  Difference  between  Tort  and  Contract* 


RICH  v.  NEW  YORK  CENT.  &  H.  R.  R.  CO. 

(Court  of  Appeals  of  New  York,  1882.     87  N.  Y.  382.) 

The  complaint  alleged  in  substance  that,  about  1850,  plaintiff,  with 
others  who  were  the  owners  of  certain  lands  in  the  village  of  Yonkers, 
entered  into  an  agreement  with  the  Hudson  River  Railroad  to  convey 
to  said  corporation  a  site  for  its  depot ;  that  the  agreement  was  carried 
out,  the  site  conveyed  and  the  depot  erected ;  that  defendant  succeeded 
to  the  rights,  franchises  and  obligations  of  said  Hudson  River  Railroad 
Company  and  plaintiff  acquired  the  titles  of  the  other  owners  of  said 
remaining  lands ;  that  there  was  a  navigable  inlet  crossed  by  said  rail- 
road and  known  as  the  Nepperhan  or  Sawmill  river ;  that  the  Hudson 
River  Railroad  Company,  having  no  right  to  cut  off  or  obstruct  the 
navigation  in  said  inlet,  had  constructed  and  maintained  a  drawbridge 
over  it;  that  it  subsequently  procured  the  passage  of  an  act  of  the 
legislature,  authorizing  it  to  bridge  said  inlet  without  any  opening  or 
draw,  on  making  compensation  to  the  riparian  owners ;  that  defend- 
ant to  avoid  the  payment  of  damages  to  said  owners,  "resolved  to  ac- 
complish the  same  object  by  artifice  and  strategy,"  and  so  threatened 
said  riparian  owners  that  unless  they  would  surrender  their  rights  and 
consent  to  the  construction  of  such  bridge  it  would  remove  its  depot, 
and  upon  said  owners  refusing  so  to  do,  did  remove  its  depot  to  a  point 
above  a  third  of  a  mile  north ;  that  plaintiff,  a  short  time  previous  to 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  1-16. 

2  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  7,  8. 

CHAP.CAS.TOBTS — 1 


A  THE  TORT  CONCEPT 

the  threatened  removal,  had  borrowed  on  his  bond  secured  by  mort- 
gage on  his  said  lands  the  sum  of  $35,000  most  of  which  was  expended 
in  erecting  stores  on  bis  said  lands  directly  opposite  and  about  one  hun- 
dred feet  south  of  said  depot  and  if  the  depot  had  not  been  removed 
could  have  rented  said  stores  and  the  adjacent  lots  for  $5,000  per  an- 
num and  could  have  sold  other  lots  for  sufficient  to  pay  off  said  mort- 
gage, but  in  consequence  of  such  removal  his  premises  became  wholly 
unproductive  and  unsalable;  that  in  order  to  have  the  depot  restored 
to  its  original  site,  and  to  save  his  property  from  being  sacrificed,  he 
was  induced  and  coerced  into  giving  his  consent  to  the  closing  of  said 
drawbridge  and  an  agreement  was  entered  into  on  March  7,  1877,  in 
and  by  which  defendant  in  consideration  of  such  consent  agreed  that  it 
would  "as  soon  as  practicable,  and  within  a  reasonable  time,  build  and 
forever  thereafter  maintain  its  principal  passenger  depot  for  Yonkers" 
upon  said  original  site;  that  defendant  thereupon  removed  the  draw- 
bridge and  erected  a  permanent  bridge  over  the  inlet ;  that  it  also  erect- 
ed a  new  depot  on  the  old  site  and  had  the  same  ready  for  use  about 
April  15,  1878,  but  absolutely  refused  to  open  or  establish  its  depot 
there  unless  the  common  council  of  Yonkers  would  pass  an  ordinance 
declaring  and  ordering  the  closing  of  a  portion  of  a  street  which  cross- 
ed tracks  so  that  it  could  build  a  fence  inclosing  said  tracks  which 
would  so  exclude  the  plaintiff  and  others  from  the  right  and  privilege 
of  crossing  said  tracks  to  the  steamboat  docks  on  the  Hudson  River; 
that  the  closing  of  said  street  would  have  damaged  plaintiff's  property 
to  at  least  the  sum  of  $50,000  and  'would  have  neutralized,  in  great 
measure,  all  the  benefits  derived  from  the  restoration  of  the  depot ;  that 
the  common  council  refused  to  pass  an  ordinance  to  that  effect,  because 
of  the  large  amount  of  damages  the  city  would  have  to  pay ;  that  up- 
on such  refusal  being  made  known  defendant's  officers  publicly  assert- 
ed that  it  would  never  open  said  new  depot  until  said  ordinance  was 
passed,  and  would  tear  down  the  new  depot  or  use  it  exclusively  for 
freight  ("in  all  of  which  the  defendant  was  actuated  by  malice  and 
vindictiveness  towards  plaintiff  and  a  design  to  crush,  ruin  and  destroy 
him") ;  that  in  consequence  of  the  removal  of  the  depot  and  the  con- 
sequent unproductiveness  of  plaintiff's  property,  he  was  unable  to  pay 
the  interest  on  said  bond  and  mortgage;  that  foreclosure  was  com- 
menced and  a  decree  of  foreclosure  and  sale  was  made ;  but  that  the 
mortgagee  had  foreborne  selling;  that  defendant's  officers  and  agents 
called  upon  the  mortgagee  and  induced  it  "to  withdraw  the  grace  and 
favor"  accorded  to  plaintiff,  and  to  advertise  the  property  immediately 
for  sale,  so  as  to  cut  off  plaintiff's  claim  for  damages,  the  mortgagee 
having  been  induced  to  waive  any  such  claim;  that  plaintiff's  entire 
property  was  sold  under  said  decree  and  bid  off  by  the  mortgagee  for 
$20,000  and  thereupon  the  ordinance  was  passed  closing  said  street 
and  defendant  immediately  opened  the  new  depot.  *  *  * 

Upon  the  trial  plaintiff  offered  in  evidence  the  agreement  of  1877, 
which  was   objected  to  and  excluded  as  irrelevant  and  incompetent. 


DIFFERENCE    BETWEEN    TORT   AND   CONTRACT 

Plaintiff  also  offered  to  show  the  alleged  breach  of  that  contract,  the 
value  of  the  property  conveyed  to  defendant  and  the  establishment  of 
the  depot  originally  thereon ;  that  the  defendant  caused  and  procured 
the  sale  of  plaintiff's  property  under  the  foreclosure  decree  to  deprive 
him  of  his  claim  for  damages  for  closing  the  street;  that  it  was  sold 
for  less  than  one-fifth  of  its  value;  that  plaintiff  was  dispossessed  at 
the  instigation  of  defendant  and  that  if  the  depot  had  been  re-establish- 
ed the  market  value  of  the  property  would  have  been  largely  increas- 
ed. *  *  * 

Defendant  moved  for  a  dismissal  of  the  complaint  and  the  motion 
was  granted.  *  *  * 

FINCH,  J.8  We  have  been  unable  to  find  any  accurate  and  perfect 
definition  of  a  "tort."  Between  actions  plainly  ex  contractu  and  those 
as  clearly  ex  delicto  there  exists  what  has  been  termed  a  "borderland," 
where  the  lines  of  distinction  are  shadowy  and  obscure,  and  the  tort 
and  the  contract  so  approach  each  other,  and  become  so  nearly  coinci- 
dent, as  to  make  their  practical  separation  somewhat  difficult.  Moak's 
Underhill  on  Torts,  23.  The  text-writers  either  avoid  a  definition  en- 
tirely (Addison  on  Torts),  or  frame  one  plainly  imperfect  (2  Bouvier's 
Law  Diet.  600),  or  depend  upon  one  which  they  concede  to  be  inac- 
curate, but  hold  sufficient  for  judicial  purposes  (Cooley  on  Torts,  3,  note 
1 ;  Moak's  Underhill,  4 ;  1  Milliard  on  Torts,  1).  By  these  last  authors 
a  tort  is  described  in  general  as  "a  wrong  independent  of  contract."  And 
yet,  it  is  conceded  that  a  tort  may  grow  out  of,  or  make  part  of,  or  be 
coincident  with,  a  contract  (2  Bouvier,  supra),  and  that  precisely  the 
same  state  of  facts  between  the  same  parties  may  admit  of  an  action 
either  ex  contractu  or  ex  delicto  (Cooley  on  Torts,  90).  In  such  cases 
the  tort  is  dependent  upon,  while  at  the  same  time  independent  of,  the 
contract ;  for,  if  the  latter  imposes  the  legal  duty  upon  a  person,  the 
neglect  of  that  duty  may  constitute  a  tort  founded  upon  a  contract.  1 
Addison  on  Torts,  13.  Ordinarily,  the  essence  of  a  tort  consists  in 
the  violation  of  some  duty  due  to  an  individual,  which  duty  is  a  thing 
different  from  the  mere  contract  obligation.  When  such  duty  grows 
out  of  relations  of  trust  and  confidence,  as  that  of  the  agent  to  his 
principal  or  the  lawyer  to  his  client,  the  ground  of  the  duty  is  ap- 
parent, and  the  tort  is,  in  general,  easily  separable  from  the  mere 
breach  of  contract.  But  where  no  such  relation  flows  from  the  con- 
stituted contract,  and  still  a  breach  of  its  obligation  is  made  the  es- 
sential and  principal  means,  in  combination  with  other  and  perhaps  in- 
nocent acts  and  conditions,  of  inflicting  another  and  different  injury, 
and  accomplishing  another  and  different  purpose,  the  question  wheth- 
er such  invasion  of  a  right  is  actionable  as  a  breach  of  contract  only, 
or  also  as  a  tort,  leads  to  a  somewhat  difficult  search  for  a  distinguishh 
ing  test. 

a  Portions  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 


4  THE  TORT  CONCEPT 

In  the  present  case,  the  learned  counsel  for  the  respondent  seems  to 
free  himself  from  the  difficulty  by  practically  denying  the  existence  of 
any  relation  between  the  parties  except  that  constituted  by  the  con- 
tract itself,  and  then  insisting  that  such  relation  was  not  of  a  char- 
acter to  originate  any  separate  and  distinct  legal  duty,  argues  that 
therefore  the  bare  violation  of  the  contract  obligation  created  merely 
a  breach  of  contract,  and  not  a  tort.  He  says  that  the  several  instru- 
ments put  in  evidence  showed  that  there  never  had  been  any  relation 
between  the  plaintiff  and  the  railroad  company,  except  that  of  parties 
contracting  in  reference  to  certain  specific  subjects,  by  plain  and  dis- 
tinct agreements,  for  any  breach  of  which  the  parties,  respectively, 
would  have  a  remedy,  but  none  of  which  created  any  such  rights  as  to 
lay  the  foundation  for  a  charge  of  wilful  misconduct  or  any  other  tor- 
tious  act.  Upon  this  theory,  the  case  was  tried.  Every  offer  to  prove 
the  contracts,  and  especially  their  breach,  was  resisted  upon  the  ground 
that  the  complaint,  through  all  its  long  history  of  plaintiff's  grievances, 
alleged  but  a  single  cause  of  action,  and  that  for  a  tort,  and  therefore 
something  else,  above  and  beyond  and  outside  of  a  mere  breach  of  con- 
tract, must  be  shown,  and  proof  of  such  breach  was  immateri- 
al. *  *  * 

<  The  exclusion  of  proof  of  the  contract  for  re-establishing  the  depot, 
and  the  willful  and  intended  breach  of  that  contract,  brings  up  for  our 
consideration  the  question  principally  argued.  Such  exclusion  must 
rest  for  its  justification  upon  the  theory  of  the  defendant's  counsel, 
already  adverted  to,  and  which  we  are  troubled  to  reconcile  with  his 
concession  that  a  cause  of  action  was  alleged  in  the  complaint.  At  the 
foundation  of  every  tort  must  lie  some  violation  of  a  legal  duty,  and 
therefore  some  unlawful  act  or  omission.  Cooley  on  Torts,  60.  What- 
ever or  however  numerous  or  formidable  may  be  the  allegations  of  con- 
spiracy, of  malice,  of  oppression,  of  vindictive  purpose,  they  are  of  no 
avail;  they  merely  heap  up  epithets,  unless  the  purpose  intended  or 
the  means  by  which  it  was  to  be  accomplished  are  shown  to  be  un- 
lawful. O'Callaghan  v.  Cronan,  121  Mass.  114;  Mahan  v.  Brown,  13 
Wend.  261,  28  Am.  Dec.  461.  The  one  separate  and  distinct  unlawful 

'act  or  omission  alleged  in  this  complaint,  or  rather  the  only  one  so 
separable  which  we  can  see  may  have  been  unlawful,  was  the  unrea- 
sonable delay  in  restoring  the  depot  to  its  original  location;  and  that 
was  unlawful,  not  inherently  or  in  itself,  but  solely  by  force  of  the 
contract  with  plaintiff.  The  instigation  of  the  sale  on  foreclosure,  as 
a  separate  fact,  may  have  been  unkind,  or  even  malicious,  but  cannot 
be  said  to  have  been  unlawful.  The  mortgagee  had  a  perfect  right  to 
sell,  judicially  established,  and  what  it  might  lawfully  do  it  •  was  not 
unlawful  to  ask  it  to  do.  The  act  of  instigating  the  sale  may  be  ma- 
terial, and  have  force,  as  one  link  in  a  chain  of  events,  and  as  serving 
to  explain  and  characterize  an  unlawful  purpose,  pursued  by  unlawful 
means ;  but,  in  and  of  itself,  it  was  not  an  unlawful  act,  and  cannot 
serve  as  the  foundation  of  a  tort.  Randall  v.  Hazelton,  12  Allen 


DIFFERENCE    BETWEEN    TORT   AND   CONTRACT  5 

(Mass.)  412.  We  are  forced  back,  therefore,  to  the  contract  for  re- 
establishing the  depot,  and  its  breach,  as  the  basis  or  foundation  of  the 
tort  pleaded.  If  that  will  not  serve  the  purpose  in  some  manner,  by 
some  connection  with  other  acts  and  conditions,  then  there  was  no 
cause  of  action  for  a  tort  stated  in  the  complaint.  We  are  thus  obliged 
to  study  the  doctrine  advanced  by  the  respondent,  and  measure  its 
range  and  extent.  It  rests  upon  the  idea  that,  unless  the  contract  cre- 
ates a  relation,  out  of  which  relation  springs  a  duty,  independent  of 
the  mere  contract  obligation,  though  there  may  be  a  breach  of  the  con- 
tract, there  is  no  tort,  since  there  is  no  duty  to  be  violated.  And  the 
illustration  given  is  the  common  case  of  a  contract  of  affreightment, 
where,  beyond  the  contract  obligation  to  transport  and  deliver  safely, 
there  is  a  duty,  born  of  the  relation  established,  to  do  the  same  thing. 
In  such  a  case,  and  in  the  kindred  cases  of  principal  and  agent,  of  law- 
yer and  client,  of  consignor  and  factor,  the  contract  establishes  a  legal 
relation  of  trust  and  confidence;  so  that,  upon  a  breach  of  the  con- 
tract, there  is  not  merely  a  broken  promise,  but,  outside  of  and  beyond 
that,  there  is  trust  betrayed  and  confidence  abused.  There  is  construc- 
tive fraud,  or  a  negligence  that  operates  as  such ;  and  it  is  that  fraud 
and  that  negligence  which,  at  bottom,  makes  the  breach  of  contract 
actionable  as  a  tort.  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Orange 
Bank  v.  Brown,  3  Wend.  161,  162. 

So  far  we  see  no  reason  to  disagree  with  the  learned  counsel  for 
the  respondent  save  in  one  respect,  but  that  is  a  very  important  one. 
Ending  the  argument  at  this  point  leaves  the  problem  of  the  case  still 
unsolved.  If  a  cause  of  action  for  a  tort,  as  admitted,  was  stated  in 
the  complaint,  it  helps  us  but  little  to  learn  what  it  was  not,  and  that 
it  does  not  fall  within  a  certain  class  of  exceptional  cases,  and  cannot 
be  explained  by  them.  We  have  yet  to  understand  what  it  is,  if  it 
exists  at  all,  as  a  necessary  preliminary  to  any  just  appreciation  of  the 
relevancy  or  materiality  of  the  rejected  evidence.  The  general  term, 
as  we  have  remarked,  described  the  tort  pleaded  as  a  "clear  case  of 
fraud."  If  that  be  true,  it  cannot  depend  upon  a  fiduciary  or  other 
character  of  the  relation  constituted  by  the  contract  merely  for  no  such 
relation  existed ;  and  there  must  be  some  other  relation  not  created  by 
the  contract  alone  from  which  sprang  the  duty  which  was  violated. 
Let  us  analyze  the  tort  alleged  somewhat  more  closely. 

At  the  date  of  the  contract  the  complaint  shows  the  relative  situa- 
tion and  needs  of  the  two  parties.  The  railroad  company  desired  to 
close  the  draw  over  the  Nepperhan  river,  and  substitute  a  solid  bridge. 
With  the  growth  of  its  business,  and  the  multitude  of  its  trains,  the 
draw  had  become  a  very  great  evil,  and  a  serious  danger.  The  effort 
to  dispense  with  it  was  in  itself  natural  and  entirely  proper.  On  the 
other  hand,  the  plaintiff  was  both  a  riparian  owner  above  the  draw  and 
likely  to  be  injured  in  that  ownership  by  a  permanent  bridge,  and  had 
suffered  and  was  still  suffering  from  a  severe  depreciation  in  the  value 
of  his  property  near  Main  street  by  the  previous  removal  of  the  rail- 


D  THE   TORT   CONCEPT 

road  station.  The  defendant  was  so  far  master  of  the  situation  that 
it  could  and  did  shut  up  the  plaintiff  to  a  choice  of  evils.  He  might 
insist  upon  the  draw  and  leave  his  mortgaged  property  to  be  lost  from 
depreciation,  and  save  his  riparian  right,  or  he  might  surrender  the  lat- 
ter to  save  the  former.  The  last  was  the  alternative  which  he  select- 
ed, and  the  contract  of  1877  was  the  result.  In  the  making  of  this  con- 
tract there  was  no  deceit  or  fraud  and  no  legal  or  actionable  wrong 
on  the  part  of  the  defendant.  If  it  drove  a- hard  bargain  and  had  the 
advantage  in  the  negotiation,  it  at  least  invaded  no  legal  right  of  the 
plaintiff  and  he  was  free  to  contract  or  not  as  he  pleased.  The  com- 
plaint does  not  allege  that  at  the  execution  of  this  agreement  there  was 
any  purpose  or  intention  of  not  fulfilling  its  terms.  The  tort,  if  any, 
originated  later.  What  remains  then  is  this :  The  railroad  company 
conceived  the  idea  of  closing  Main  street  to  any  travel  where  it  passed 
their  tracks  at  grade ;  of  substituting  a  bridge  crossing  in  its  stead ; 
and  of  fencing  in  its  track  along  the  street  beneath,  so  as  to  compel 
access  to  the  cars  through  its  depot  in  such  manner  that  the  purchase 
of  tickets 'could  be  compelled.  This  in  itself  was  a  perfectly  lawful 
purpose.  The  grade  crossing  was  a  death  trap,  and  the  interest  of  the 
company  and  the  safety  of  individuals  alike  made  a  change  desirable, 
and  the  closing  in  of  the  depot  was  in  no  sense  reprehensible.  But 
there  was  a  difficulty  in  the  way.  The  plaintiff  again  stood  as  an  ob- 
stacle in  the  path.  The  closing  of  Main  street,  though  beneficial  to 
the  company,  was  to  him  and  his  adjoining  property  claimed  to  be 
a  very  serious  injury.  He  declined  to  consent,  except  upon  the  con- 
dition of  an  award  of  heavy  damages,  and  in  dread  of  that  peril  the 
common  council  refused  to  pass  the  necessary  ordinance.  At  this  point, 
according  to  the  allegations  of  the  complaint,  if  at  all  or  ever,  arose 
the  tort.  It  is  alleged  that  the  defendant,  in  order  to  reach  a  lawful 
result,  planned  a  fraudulent  scheme  for  its  accomplishment  by  unlawful 
means,  and  through  an  injury  to  the  plaintiff,  which  would  strip  him 
of  his  damages  by  a  complete  sacrifice  of  his  property.  That  plan  was 
executed  in  this  manner :  The  company  willfully  and  purposely  re- 
fused to  perform  its  contract.  It  had  built  its  permanent  bridge  over 
the  Nepperhan,  and  so  received  the  full  considerations  of  its  promise ; 
its  new  depot  was  substantially  finished  and  ready  for  occupation ; 
and  no  just  reason  remained  why  its  contract  should  not  be  fulfilled. 
But  the  company  refused.  It  did  not  merely  neglect  or  delay ;  it  open- 
ly and  publicly  refused.  The  purpose  of  that  public  refusal  was  ap- 
parent. It  was  to  drive  the  plaintiff's  mortgagee  to  a  foreclosure;  it 
was  to  shut  out  from  plaintiff  that  appreciation  of  his  property  which 
would  enable  him  to  save  it;  it  was  to  strip  him  of  it,  so  as  to  ex- 
tinguish the  threatened  damages,  and  thus  procure  the  assent  of  the 
common  council,  and  get  Main  street  closed.  This  unlawful  refusal 
to  perform  the  contract,  this  deliberate  announcement  of  the  purpose 
not  to  restore  the  depot,  was  well  calculated  to  influence  the  mortgagee 
towards  a  foreclosure.  But  the  defendant's  direct  instigation  was  add- 


DIFFERENCE    BETWEEN   TORT   AND   CONTRACT  7 

ed.  The  foreclosure  came;  the  mortgagee  bid  in  the  property  at  a 
sacrifice;  swiftly  followed  a  release  of  damages,  an  ordinance  of  the 
common  council,  the  closing  of  Main  street,  and  then  the  restoration 
of  the  depot. 

We  are  thus  able  to  see  what  the  tort  pleaded  was.  It  was  not  a  con- 
structive fraud,  drawn  from  a  violation  of  a  duty  imposed  by  law  out 
of  some  specific  relation  of  trust  and  confidence,  but  an  actual  and  af- 
firmative fraud — an  alleged  scheme  to  accomplish  a  lawful  purpose  by 
unlawful  means.  There  was  here,  on  the  theory  of  the  complaint, 
something  more  than  a  mere  breach  of  contract.  That  breach  was  not 
the  tort;  it  was  only  one  of  the  elements  which  constituted  it.  Be- 
yond that,  and  outside  of  that,  there  was  said  to  have  existed  a  fraud- 
ulent scheme  and  device  by  means  of  that  breach  to  procure  the  fore- 
closure of  the  mortgage  at  a  particular  time  and  under  such  circum- 
stances as  would  make  that  foreclosure  ruinous  to  the  plaintiff's  rights, 
and  remove  him  as  an  obstacle  by  causing  him  to  lose  his  property,  and 
thereby  his  means  of  resistance  to  the  purpose  ultimately  sought.  In 
other  words,  the  necessary  theory  of  the  complaint  is  that  a  breach  of 
contract  may  be  so  intended  and  planned ;  so  purposely  fitted  to  time 
and  circumstances  and  conditions;  so  interwoven  into  a  scheme  of 
oppression  and  fraud ;  so  made  to  set  in  motion  innocent  causes  which 
otherwise  would  not  operate — as  to  cease  to  be  a  mere  breach  of  con- 
tract, and  become,  in  its  association  with  the  attendant  circumstances, 
a  tortious  and  wrongful  act  or  omission. 

It  may  be  granted  that  an  omission  to  perform  a  contract  obligation 
is  never  a  tort,  unless  that  omission  is  also  an  omission  of  a  legal  duty. 
But  such  legal  duty  may  arise,  not  merely  out  of  certain  relations 
of  trust  and  confidence,  inherent  in  the  nature  of  the  contract  itself, 
as  in  the  case  referred  to  in  the  respondent's  argument,  but  may  spring 
from  extraneous  circumstances,  not  constituting  elements  of  the  con- 
tract as  such,  although  connected  with  and  dependent  upon  it,  and 
born  of  that  wider  range  of  legal  duty  which  is  due  from  every  man 
to  his  fellow,  to  respect  his  rights  of  property  and  person,  and  refrain 
from  invading  them  by  force  or  fraud.  It  has  been  well  said  that  the 
liability  to  make  reparation  for  an  injury  rests,  not  upon  the  considera- 
tion of  any  reciprocal  obligation,  but  upon  an  original  moral  duty  en- 
joined upon  every  person  so  to  conduct  himself,  or  exercise  his  own 
rights,  as  not  to  injure  another.  Kerwhacker  v.  C.,  C.  &  C.  R.  R.  Co., 
3  Ohio  St.  188,  62  Am.  Dec.  246.  Whatever  its  origin,  such  legal  duty 
is  uniformly  recognized,  and  has  been  constantly  applied  as  the  founda- 
tion of  actions  for  wrongs ;  and  it  rests  upon  and  grows  out  of  the  rela- 
tions which  men  bear  to  each  other  in  the  framework  of  organized 
society.  It  is  then  doubtless  true  that  a  mere  contract  obligation  may 
establish  no  relation  out  of  which  a  separate  or  specific  legal  duty  aris- 
es and  yet  extraneous  circumstances  and  conditions,  in  connection  with 
it,  may  establish  such  a  relation  as  to  make  its  performance  a  legal 
duty,  and  its  omission  a  wrong  to  be  redressed.  The  duty  and  the  tort 


8  THE  TORT  CONCEPT 

grow  out  of  the  entire  range  of  facts,  of  which  the  breach  of  the  con- 
tract was  but  one.  The  whole  doctrine  is  accurately  and  concisely 
stated  in  1  Chit.  PI.  135,  that,  "if  a  common-law  duty  result  from  the 
facts,  the  party  may  be  sued  in  tort  for  any  negligence  or  misfeasance 
in  the  execution  of  the  contract."  It  is  no  difficulty  that  the  mort- 
gagee's agreement  to  give  time,  and  postpone  the  sale  for  plaintiff's 
benefit,  was  invalid,  and  a  mere  act  of  grace  which  could  not  have  been 
compelled.  If  it  is  made  plain  that  the  mortgagee  would  have  waited 
but  for  the  fraudulent  scheme  and  conduct  of  the  defendant,  that  is 
enough.  Benton  v.  Pratt,  2  Wend.  385,  20  Am.  Dec.  623 ;  Rice  v.  Man- 
ley,  66  N.  Y.  83,  23  Am.  Rep.  30.  Nor  is  it  a  difficulty  that  the  in- 
jury suffered  was  the  result  of  a  series  of  acts,  some  of  which  were  law- 
ful and  innocent.  Cooley  on  Torts ;  Bebinger  v.  Sweet,  1  Abb.  N.  C. 
263. 

Assuming,  now,  that  we  correctly  understand  what  the  tort  pleaded 
was,  and  which  was  conceded  to  constitute  a  cause  of  action,  it  seems 
to  us  quite  clear  that  the  plaintiff  was  improperly  barred  from  prov- 
ing it.  From  the  very  nature  of  the  case,  a  fraud  can  seldom  be  proved 
directly,  and  almost  uniformly  is  an  inference  from  the  character  of  the 
whole  transaction,  and  the  surrounding  and  attendant  circumstances. 
Proof  of  the  contract,  and  its  breach,  of  the  delay  in  restoring  of  the 
depot,  and  the  reasons  therefor,  were  essential  links  in  the  chain.  If 
the  proof  should  go  no  further,  a  nonsuit  would  be  proper,  but  without 
these  elements  the  tort  alleged  could  not  be  established  at  all.  And  so 
the  situation  of  the  parties  as  it  respected  their  several  properties,  the 
existence  of  the  mortgage,  the  agreement  to  postpone  the  sale,  were  ele- 
ments of  the  transaction  proper  to  be  shown.  *  *  * 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  costs 
to  abide  the  event.  All  concur,  except  RAPALLO  and  Mii^ER,  JJ-,  not 
voting. 

Judgment  reversed. 


1.  ELECTION  OE  REMEDY* 


TERRY  v.  MUNGER. 

(Court  of  Appeals  of  New  York,  1890.    121  N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A. 
216,  18  Am.  St.  Rep.  803.) 

PECKHAM,  J.5  The  plaintiffs  commenced  an  action  heretofore  against 
two  other  persons,  named,  respectively,  Kipp  and  Munger,  on  account 
of  the  same  transaction  for  which  this  action  was  brought  against 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  9,  10. 
o  A  portion  of  the  opinion  is  omitted. 


DIFFERENCE   BETWEEN   TORT   AND   CONTRACT 

the  above-named  sole  defendant.  The  character  of  the  complaint  in 
that  action  was  before  this  court,  and  the  case  is  reported  in  88  N. 
Y.  629  (Goodwin  v.  Griffis).  The  defendants  in  that  case  were  charged 
with  detaching  and  carrying  away  from  the  mill  the  machinery  in  ques- 
tion in  that  case,  and  also  in  this,  and  using  it  for  themselves.  It  was 
there  held,  upon  a  perusal  of  the  complaint,  that  the  action  was  of  a 
nature  ex  contractu,  and  not  ex  delicto,  for  the  wrong  done  plaintiffs 
by  the  conversion  of  their  property.  As  the  defendants  therein  had 
not,  after  their  conversion  of  it,  themselves  sold  or  otherwise  disposed 
of  the  property  which  they  acquired  from  the  plaintiffs,  the  fiction  of 
the  receipt  by  defendants  of  money  for  the  sale  of  the  property,  which 
ex  asquo  et  bono  they  ought  to  pay  back  to  plaintiffs,  and  which  they 
therefore  impliedly  promised  to  pay  back,  could  not  be  indulged  in, 
and  the  position  of  the  parties  would  have  been  at  one' time  the  sub- 
ject of  some  doubt,  whether  there  was  any  foundation  for  the  doc- 
trine of  an  implied  promise  in  such  case,  or  any  possibility  of  the 
waiver  of  the  tort  committed  by  the  defendants  in  the  conversion  of 
the  property.  In  some  of  the  states  it  has  been  denied,  and  such 
denial  placed  upon  the  ground  that  the  property  remained  in  the 
hands  of  the  wrongdoer,  and  therefore,  no  money  having  been  re- 
ceived by  him  in  fact,  an  implied  promise  to  pay  over  money  had  and 
received  by  defendant  to  the  plaintiff's  use  did  not  and  could  not 
arise.  Such  was  the  case  of  Jones  v.  Hoar,  5  Pick.  (Mass.)  285. 
But  the  great  weight  of  authority  in  this  country  is  in  favor  of  the 
right  to  waive  the  tort,  even  in  such  case.  If  the  wrongdoer  has  not 
sold  the  property,  but  still  retains  it,  the  plaintiff  has  the  right  to 
waive  the  tort,  and  proceed  upon  an  implied  contract  of  sale  to  the 
wrongdoer  himself,  and  in  such  event  he  is  not  charged  as  for  money 
had  and  received  by  him  to  the  use  of  the  plaintiff.  The  contract 
implied  is  one  to  pay  the  value  of  the  property  as  if  it  had  been  sold 
to  the  wrongdoer  by  the  owner.  If  the  transaction  is  thus  held  by  the 
plaintiff  as  a  sale,  of  course  the  title  to  the  property  passes  to  the 
wrongdoer,  when  the  plaintiff  elects  to  so  treat  it.  See  Pom.  Rem. 
(2d  Ed.)  §§  567-569;  Putnam  v.  Wise,  1  Hill,  234,  240,  and  note  by 
Mr.  Hill,  37  Am.  Dec.  309;  Berly  v.  Taylor,  5  Hill,  577,  584;  Norden 
v.  Jones,  33  Wis.  600,  605,  14  Am.  Rep.  782;  Cummings  v.  Vorce, 
3  Hill,  283 ;  Spoor  v.  Newell,  Id.  307 ;  Abbott  v.  Blossom,  66  Barb. 
353.  We  think  this  rule  should  be  regarded  as  settled  in  this  state. 
The  reasons  for  the  contrary  holding  are  as  well  stated  as  they  can 
be  in  the  case  above  cited  from  Massachusetts  (5  Pick.),  and  some  of 
the  cases  looking  in  that  direction  in  this  state  are  cited  in  the  opinion 
of  Talcott,  J.,  in  the  case  reported  in  66  Barb.,  supra.  We  think 
the  better  rule  is  to  permit  the  plaintiff  to  elect,  and  to  recover  for 
goods  sold,  even  though  the  tort-feasor  has  not  himself  disposed  of  the 
goods.  *  *  * 


10  THE  TORT  CONCEPT 


III.  Statutory  Torts  • 


WILLY  v.  MULLEDY. 

(Court  of  Appeals  of  New  York,  1879.     78  N.  Y.  310,  34  Am.  Rep.  536.) 

KARL,  J.  This  is  an  action  to  recover  damages  for  the  death  of 
plaintiff's  wife,  alleged  to  have  been  caused  by  the  fault  of  the  defend- 
ant. Prior  to  the  1st  day  of  November,  1877,  the  plaintiff  hired  of 
the  defendant  certain  apartments  in  the  rear  of  the  third  story  of  a 
tenement  house  in  the  city  of  Brooklyn,  and  with  his  wife  and  infant 
child  moved  into  them  on  that  day.  On  the  5th  day  of  the  same  month, 
in  the  daytime,  a  fire  took  place,  originating  in  the  lower  story  of  the 
house,  and  plaintiff's  wife  and  child  were  smothered  to  death. 

It  is  claimed  that  the  defendant  was  in  fault  because  he  had  not  con- 
structed for  the  house  a  fire  escape,  and  because  he  had  not  placed  in 
the  house  a  ladder  for  access  to  the  scuttle.  Section  36,  tit.  13,  c.  863, 
Laws  1873,  provides  that  every  building  in  the  city  of  Brooklyn  shall 
have  a  scuttle  or  place  of  egress  in  the  roof  thereof  of  proper  size, 
and  "shall  have  ladders  or  stairways  leading  to  the  same;  and  all 
such  scuttles  and  stairways  or  ladders  leading  to  the  roof  shall  be  kept 
in  readiness  for  use  at  all  times."  It  also  provided  that  houses  like 
that  occupied  by  the  plaintiff  "shall  be  provided  with  such  fire  escapes 
and  doors  as  shall  be  directed  and  approved  by  the  commissioners  [of 
the  department  of  fire  and  buildings]  ;  and  the  owner  or  owners  of 
any  building  upon  which  any  fire  escapes  may  now  or  hereafter  be 
erected  shall  keep  the  same  in  good  repair,  and  well  painted,  and  no 
person  shall  at  any  time  place  any  incumbrance  of  any  kind  whatso- 
ever upon  said  fire  escapes  now  erected,  or  that  may  hereafter  be 
erected,  in  the  city.  Any  person,  after  being  notified  by  said  com- 
missioners, who  shall  neglect  to  place  upon  any  such  building  the  fire 
escape  herein  provided  for  shall  forfeit  the  sum  of  $500,  and  shall  be 
deemed  guilty  of  a  misdemeanor."  Under  this  statute  the  defendant 
was  bound  to  provide  this  house  with  a  fire  escape.  He  was  not  per- 
mitted to  wait  until  he  should  be  directed  to  provide  one  by  the  com- 
missioners. He  was  bound  to  do  it  in  such  way  as  they  should  direct 
and  approve,  and  it  was  for  him  to  procure  their  direction  and  ap- 
proval. No  penalty  is  imposed  for  the  simple  omission  to  provide  one. 
The  penalty  can  be  incurred  only  for  the  neglect  to  provide  one  after 
notification  by  the  commissioners.  Here  was,  then,  an  absolute  duty 
imposed  upon  the  defendant  by  statute  to  provide  a  fire  escape,  and 
the  duty  was  imposed  for  the  sole  benefit  of  the  tenants  of  the  house, 

•  For  discussion  of  principles,  see  Chapin  on  Torts,  §  11. 


STATUTORY   TORTS  11 

so  that  they  would  have  a  mode  of  escape  in  the  case  of  a  fire.  For 
a  breach  of  this  duty  causing  damage,  it  cannot  be  doubted  that  the 
tenants  have  a  remedy.  It  is  a  general  rule  that  whenever  one  owes 
another  a  duty,  whether  such  duty  be  imposed  by  voluntary  contract  or 
by  statute,  a  breach  of  such  duty  causing  damage  gives  a  cause  of 
action.  Duty  and  right  are  correlative,  and  where  a  duty  is  imposed 
there  must  be  a  right  to  have  it  performed.  When  a  statute  imposes 
a  duty  upon  a  public  officer,  it  is  well  settled  that  any  person  having 
a  special  interest  in  the  performance  thereof  may  sue  for  a  breach 
thereof  causing  him  damage,  and  the  same  is  true  of  a  duty  imposed 
by  statute  upon  any  citizen.  Cooley  on  Torts,  654;  Hover  v.  Bark- 
hoof,  44  N.  Y.  113;  Jetter  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  2  Abb. 
Dec.  458;  Heeney  v.  Sprague,  11  R.  I.  456,  23  Am.  Rep.  502;  Couch 
v.  Steel,  3  Ell.  &  Bl.  402.  In  Comyn's  Digest,  "Action  upon  Statute" 
(F),  it  is  laid  down  as  the  rule  that,  "in  every  case  where  a  statute 
enacts  or  prohibits  a  thing  for  the  benefit  of  a  person,  he  shall  have 
a  remedy  upon  the  same  statute  for  the  thing  enacted  for  his  advan- 
tage, or  for  the  recompense  of  a  wrong  done  to  him  contrary  to  the 
said  law."  There  was  no  fire  escape  for  this  house.  But  the  claim 
is  made  on  behalf  of  this  defendant  that  he  is  not  liable  in  this  action, 
because  the  plaintiff  and  his  wife  knew,  when  they  moved  into  the 
house  and  while  they  occupied  the  same,  that  there  was  no  fire  escape, 
and  hence  that  they  voluntarily  took  the  hazard  of  its  absence.  It  is 
undoubtedly  true  that  the  plaintiff  could  have  stipulated  against  or 
have  waived  the  performance  of  this  duty  imposed  for  his  benefit,  but 
this  he  did  not  do.  There  is  no  proof  of  any  kind  that  it  was  the  in- 
tention of  the  parties  entering  into  their  contract  that  he  should  take 
and  occupy  this  house  without  a  fire  escape.  There  is  nothing  to  show 
that  he  knew  there  was  no  fire  escape  there  when  he  hired  the  apart- 
ments. It  is  not  shown  that  his  attention  was  in  any  way  called  to 
the  matter  or  that  he  looked  for  one.  Its  absence  could  be  discovered 
only  by  an  examination  outside  of  the  house,  and  there  is  no  evidence 
that  he  made  such  examination.  He  had  the  right  to  assume  that  the 
statutory  duty  had  been  performed.  There  is  no  proof  that  during  his 
occupancy  he  discovered  the  absence  of  a  fire  escape.  He  was  there 
but  three  days,  excluding  the  day  upon  which  he  moved  in  and  the 
day  upon  which  the  fire  occurred,  and  during  that  time  it  does  not 
appear  how  much  of  the  time  he  was  in  the  house.  There  is  certainly 
no  evidence  that  he  or  his  wife  discovered  that  there  was  no  fire  escape, 
or  that  their  attention  had  been  called  to  the  matter.  They  owed  no 
duty  to  the  defendant  to  look  and  see  whether  there  was  one  there 
or  not.  They  had  the  right  to  rely  upon  its  presence  there  as  required 
by  the  statute.  But  suppose  they  did  discover  that  there  was  no  fire 
escape  at  some  time  while  there,  after  they  moved  in ;  does  such  dis- 
covery absolve  the  defendant  from  his  duty?  After  making  the  dis- 
covery, they  were  not  bound  at  once  to  leave  the  house  and  go  into  the 


12  THE  TORT  CONCEPT 

street.  They  had  a  reasonable  time  to  look  for  and  move  into  other 
apartments;  and  by  remaining  for  such  reasonable  time  they  waived 
nothing;  and,  if  they  did  not  choose  to  move  out,  they  were  entitled 
to  a  reasonable  time  to  find  the  defendant  and  to  call  upon  him  to 
furnish  the  fire  escape.  By  remaining  in  the  house  for  such  reasonable 
time  after  discovery  of  the  breach  of  duty  on  the  part  of  the  defend- 
ant, it  could  not  be  said  as  matter  of  law  that  they  waived  the  perform- 
ance thereof,  or  took  upon  themselves  voluntarily  the  hazard  of  all 
the  damages  which  they  might  sustain  by  the  nonperformance  thereof. 
The  duty  rested  upon  the  defendant  not  solely  to  have  a  fire  escape 
there  when  the  plaintiff  leased  the  premises,  but  it  continued  to  rest 
upon  him ;  and,  before  it  could  be  held  that  the  plaintiff  absolved  him 
in  any  way  from  this  duty,  the  proof  should  be  clear  and  satisfactory. 
Here,  I  hold,  there  was  no  proof  whatever  from  which  it  could  prop- 
erly have  been  found  that  he  did  so  absolve  him. 

But  it  was  needful  for  the  plaintiff  to  show,  not  only  that  there  was 
this  breach  of  duty,  but  that  the  death  of  plaintiff's  wife  was  due  to 
such  breach ;  that  is,  that  her  life  would  have  been  saved  if  there  had 
been  a  fire  escape  there.  It  is  reasonably  certain  that  if  the  defendant 
had  placed  the  fire  escape  at  the  rear  of  the  house,  constructed  as 
they  were  required  to  be,  that  the  deceased  would  have  seen  it,  and 
made  her  escape,  as  it  would  have  been  at  one  of  the  windows  of  the 
rear  rooms  which  she  occupied.  But  it  is  said  that  the  defendant  was 
not  bound  to  place  the  fire  escape  at  the  rear  of  his  house,  but  that 
he  could  have  placed  it  in  the  front  of  his  house,  and  that  if  he  had 
placed  it  there  she  could  not  have  escaped.  It  is  probably  true  that 
she  could  not  have  escaped  from  -the  front  of  the  house.  But  there 
is  no  proof  where  fire  escapes  are  usually  constructed,  nor  whether 
the  front  or  rear  of  this  particular  house  would  have  been  the  more 
suitable  place  for  the  fire  escape.  I  think  we  may  assume  from  the 
manner  in  which  the  front  part  of  this  house  was  constructed,  and 
from  the  structure  of  fire  escapes,  that  it  is  most  probable  that  it  would 
have  been  placed  on  the  rear  of  the  house.  We  think  upon  the  whole 
case  there  was  enough  to  authorize  the  jury  to  find  that  the  deceased 
would  have  escaped,  if  the  defendant  had  discharged  his  duty  as  the 
law  required. 

Many  of  the  observations  already  made  apply  to  the  ladder  for  the 
scuttle.  The  duty  to  furnish  and  keep  such  a  ladder  was  imposed 
mainly  for  the  benefit  of  the  tenants.  It  was  the  intention  of  the  stat- 
ute that  they  should  have  two  means  of  escape  in  the  case  of  fire,  one 
by  the  scuttle  and  another  by  the  fire  escape.  It  was  the  duty  of  the 
defendant  to  provide  a  ladder,  and  then  to  use  reasonable  care  to 
keep  it  there  in  readiness  for  use.  The  defendant  had  once  provided 
a  ladder  for  this  scuttle,  but  for  many  months  before  this  fire  there 
had  been  none  there.  This  the  plaintiff  and  his  wife  did  not  know. 
They  knew  where  the  scuttle  was,  and  they  had  the  right  to  suppose 


STATUTORY   TOUTS  13 

that  there  was  a  ladder  to  reach  it,  as  the  law  requires.  Hence  there 
was,  or  at  least  the  jury  had  the  right  to  find  that  there  was,  a  breach 
of  duty  in  this  respect.  But  the  claim  is  also  made  as  to  this  that  there 
was  not  sufficient  evidence  to  authorize  the  jury  to  find  that  the  breach 
of  this  duty  had  any  connection  with  the  death  of  plaintiff's  wife;  that 
her  life  would  have  been  saved  if  the  ladder  had  been  there.  We 
think  there  was.  The  evidence  was  not  very  satisfactory.  It  is, true 
that  much  is  left,  from  the  necessity  of  the  case,  to  the  weighing  of 
probabilities.  But  the  jury  could  find  that  the  deceased  knew  where 
the  scuttle  was ;  that  she  had  time  after  notice  of  the  fire  to  reach  it ; 
and  that,  as  she  was  making  efforts  to  escape,  she  probably  tried  to 
escape  in  that  direction,  and  failed  for  want  of  the  ladder.  There 
was  sufficient  evidence,  therefore,  to  authorize  a  verdict  for  the  plain- 
tiff, and  we  do  not  think  the  judgment  should  be  reversed  for  other 
errors  alleged.  *  *  * 7 

The  judgment  must  be  affirmed  with  costs.    All  concur.    Judgment 
affirmed. 


STRONG  v.  CAMPBELL. 

(Supreme  Court  of  New  York,  1851.     11  Barb.  135.) 

Demurrer  to  declaration.  The  declaration  alleged  that  on  the  1st 
day  of  December,  1847,  the  defendant  was  postmaster  at  the  city  of 
Rochester,  and  as  such  it  became  and  was  his  duty,  by  force  of  the 
statute  in  such  case  made  and  provided,  to  advertise  letters  uncalled 
for  at  his  office  in  the  newspaper  published  at  Rochester  having  the 
largest  circulation;  that  there  was  at  that  time  in  said  office  a  large 
number  of  letters  uncalled  for,  which  it  was  the  duty  of  the  de- 
fendant to  advertise;  that  the  plaintiffs  then  were,  and  ever  since 
have  been,  the  publishers  and  proprietors  of  a  newspaper,  printed 
and  published  daily  in  the  city  of  Rochester,  called  the  Rochester 
Daily  Democrat,  which  paper  then  had,  and  ever  since  has  continued 
to  have,  the  largest  circulation  of  any  newspaper  printed  and  pub- 
lished at  Rochester,  and  were  ready  and  willing  to  advertise  the  said 
letters  at  the  price  fixed  by  law.  Yet  the  defendant,  well  knowing  the 
premises,  but  contriving  and  wrongfully,  maliciously  and  unjustly  in- 
tending to  injure  and  aggrieve  the  plaintiffs  in  that  behalf,  wrongfully, 
maliciously  and  unjustly  refused  and  neglected  to  publish  the  letters 
uncalled  for  at  his  office  in  the  paper  so  published  by  the  plaintiffs; 
whereby  the  plaintiffs  were  deprived  of  the  profits  and  advantage 
which  would  otherwise  have  accrued  to  them  from  the  printing  of 
the  said  letters.  The  defendant  demurred.8 

T  The  remainder  of  the  opinion  is  omitted. 
8  The  statement  of  facts  is  abridged. 


14  THE  TORT  CONCEPT 

JOHNSON,  J.  I  have  not  deemed  it  necessary  to  examine  the  ques- 
tions raised  as  to  the  sufficiency  of  the  averments  in  the  declaration 
conceding  the  action  to  be  maintainable,  because  in  my  judgment  there 
is  no  foundation  whatever  in  law  for  an  action,  under  any  conceiv- 
able state  of  pleading,  for  such  a  cause.  I  think  no  case  or  precedent 
can  anywhere  be  found  which  gives  it  the  least  countenance  or  sup- 
port. This  of  itself  would  afford  a  very  strong  presumption  against 
the  right  of  action.  But  the  position  does  not  rest  upon  mere  negative 
inferences.  The  authorities,  I  apprehend,  will  be  found,  on  examina- 
tion, to  be  abundant  and  conclusive  against  the  right  of  action  for 
the  cause  alleged. 

The  cause  alleged  is  a  breach  of  duty  on  the  part  of  the  defendant 
as  a  postmaster,  in  refusing  to  receive  the  proofs  offered  by  the  plain- 
tiffs in  regard  to  the  circulation  of  their  paper,  and  to  give  them  the 
publishing  of  the  list  of  letters  remaining  in  the  post  office  at  Rochester, 
according  to  the  act  of  congress  and  the  instructions  of  the  postmaster 
general,  whereby  they  lost  the  employment  and  the  gains  and  profits 
arising  therefrom. 

To  give  a  right  of  action  for  such  a  cause,  the  plaintiff  must  show 
that  the  defendant  owed  the  duty  to  him  personally.  Wherever  an 
action  is  brought  for  a  breach  of  duty  imposed  by  statute,  the  party 
bringing  it  must  show  that  he  had  an  interest  in  the  performance  of 
the  duty,  and  that  the  duty  was  imposed  for  his  benefit.  But  where 
the  duty  was  created  or  imposed  for  the  benefit  of  another,  and  the 
advantage  to  be  derived  to  the  party  prosecuting,  by  its  performance,  is 
merely  incidental  and  no  part  of  the  design  of  the  statute,  no  such 
right  is  created  as  forms  the  subject  of  an  action.  In  this  I  appre- 
hend all  the  authorities  will  be  found  to  agree.  Martin  v.  Mayor, 
etc.,  of  Brooklyn,  1  Hill,  545 ;  Bank  of  Rome  v.  Mott,  17  Wend.  556, 
19  Vin.  Ab.  518,  520;  1  Salk.  19;  Ashby  v.  White,  6  Mod.  51.  In 
the  latter  case  Holt,  Chief  Justice,  laid  down  the  rule  that  it  must  be 
shown  that  the  party  had  a  right  vested  in  him,  in  order  to  maintain 
the  action.  And  this  I  apprehend  is  the  true  rule.  It  must  be  an  ab- 
solute vested  right  or  interest  in  contradistinction  to  one  incidental  and 
contingent.  The  case  of  Foster  v.  McKibben,  Postmaster  of  Pitts- 
burg,  in  the  district  court  of  Alleghany  county  (reported  in  the  Ameri- 
can Law  Journal,  new  series,  vol.  1,  p.  411),  is  directly  in  point.  The 
case  is  nearly  in  its  facts  identical  with  this,  and  the  court  held  that 
the  action  could  not  be  maintained.  That  case  is  authority  so  far  only 
as  its  reasoning  is  sound.  But  the  reasons  given  by  the  judge  who  de- 
livered the  opinion  of  the  court  will  commend  themselves  to  every 
legal  mind,  with  the  weight  and  force  of  authority.  It  is  unquestion- 
ably the  duty  of  every  officer  to  perform  every  duty  imposed  upon  him 
by  law,  in  the  manner  and  to  the  extent  prescribed,  and  he  may  be 
punished  for  every  violation  to  the  injury  of  the  public  or  that  of  in- 
dividuals. But  it  does  not  follow  that  some  one  has  a  right  of  action 


STATUTORY   TORTS  15 

against  him  for  every  neglect  or  violation  of  duty  to  recover  private 
damages. 

Now  for  whose  benefit  was  the  act  of  congress  under  consideration 
passed,  and  the  instructions  of  the  postmaster  general  given?  Not 
surely  that  publishers  of  newspapers  might  be  enabled  to  obtain  prof- 
itable employment,  and  receive  emoluments  from  the  public  treasury. 
That  was  no  part  of  tfye  design  of  the  lawmakers.  The  design  of 
the  law  obviously  was,  first,  to  benefit  persons  receiving  communica- 
tions through  the  post  office,  by  giving  the  widest  possible  notice  that 
letters  remained  on  hand  ready  for  delivery;  and,  secondly,  to  se- 
cure the  greatest  amount  of  revenue  to  the  department  by  the  delivery 
of  letters  and  the  receipt  of  postage  thereon,  which  might  otherwise 
never  be  called  for,  and  consequently  be  returned  to  the  dead  letter 
office.  These  plaintiffs  had  no  direct  interest  in  the  observance  of 
the  law  and  the  regulations  of  the  department,  except  as  they  received 
letters  at  this  office.  Every  person  to  whom  letters  were  or  might  be 
addressed  at  this  office  had  an  interest  in  the  performance  of  this 
duty.  Whether  such  persons  could  maintain  an  action  for  a  breach  of 
this  character,  it  is  not  necessary  now  to  consider.  But  it  is  clear, 
I  think,  that  these  plaintiffs,  as  publishers  of  a  newspaper,  in  which 
character  they  claim,  had  no  such  interest  as  gives  a  right  of  action. 
As  connected  with  their  paper  they  were  not  within  the  purview  of 
the  statute,  except  incidentally.  It  secured  to  them  no  fixed  and  abso- 
lute right,  and  imposed  upon  them  no  duty  whatever.  They  were 
under  no  obligation  to  publish  the  list  when  offered,  and  their  refusal 
would  have  involved  no  liability  to  any  one.  They  might  make  a 
profit  by  the  performance  of  the  duty,  but  they  sustain  no  loss  by 
its  nonperformance.  They  would  not  be  injured,  in  any  legal  sense, 
by  a  repeal  of  the  law.  We  have  many  statutory  regulations  requir- 
ing notices  in  various  legal  proceedings,  in  sales  upon  executions,  and 
the  foreclosure  of  mortgages,  to  be  published  some  in  the  state  paper 
and  others  in  newspapers  printed  in  the  county.  Should  the  person 
whose  duty  it  was  to  publish  these  notices  publish  in  the  wrong  paper, 
and  the  person  for  whose  benefit  the  proceeding  was  instituted  or 
carried  on  thereby  lose  the  benefit  of  the  proceeding,  and  sustain  an 
injury,  undoubtedly  such  person  might  bring  his  action  and  recover 
his  damages.  But  was  it  ever  heard  or  claimed  before  that  the  pro- 
prietor of  the  paper  in  which  the  notice  should  properly  have  been 
published  had  any  such  right  or  interest  in  the  matter  as  would  en- 
title him  to  maintain  an  action  to  recover  the  profits  which  the  publi- 
cation in  his  paper  would  have  brought  him  ?  That  would  be  a  parallel 
case.  The  interest  is  too  remote  and  contingent  to  be  the  foundation 
of  a  right  of  which  the  law  takes  cognizance. 

The  action  is  altogether  misconceived,  and  the  defendant  must 
have  judgment  upon  the  demurrer. 


\ 

16  THE  TORT  CONCEPT 


IV.  Cases  of  Novel  Impression* 


KUJEK  v.  GOLDMAN: 

(Court  of  Appeals  of  New  York,  1896.     150  N.  T.  176,  44  N.  E.  773,  34  L.  R.  A. 
156,  55  Am.  St.  Rep.  670.) 

Prior  to  January  17,  1891,  the  defendant  Katie  Kujek,  then  named 
Katie  Moritz,  was  an  unmarried  woman  employed  as  a  domestic  in  the 
family  of  the  defendant  Goldman,  by  whom  she  had  become  pregnant. 
Upon  discovering  the  fact,  the  defendants,  as  it  is  alleged  in  the  com- 
plaint, conspired  to  conceal  their  disgrace,  and  to  induce  the  plaintiff 
to  marry  the  said  Katie,  and  to  that  end  represented  to  him  that  she 
was  a  virtuous  and  respectable  woman,  and  he,  believing  the  same,  did 
marry  her  on  the  day  last  named.  The  plaintiff,  as  it  was  further  al- 
leged, would  not  have  contracted  said  marriage  if  he  had  known  the 
facts.  Subsequently,  and  on  July  29,  1891,  owing  to  such  pregnancy, 
she  gave  birth  to  a  child,  of  which  said  Goldman  was  the  father.  The 
answer  of  Goldman  was,  in  substance,  a  general  denial.  No  answer 
was  served  by  the  other  defendant,  and  no  judgment  was  taken  against 
her.  The  evidence  tended  to  sustain  the  allegations  of  the  complaint. 

VANN,  J.  (after  stating  the  facts).  The  verdict  of  the  jury  has  es- 
tablished as  the  facts  of  this  case,  beyond  our  power  to  review,  that 
the  plaintiff  married  Katie  Moritz  in  the  belief  that  she  was  a  virtu- 
ous girl,  induced  by  the  representations  of  the  defendant  to  that  effect, 
when  in  fact  she  was  at  the  time  pregnant  by  the  defendant  himself. 
The  case  was  submitted  to  the  jury  upon  the  theory  that  if  Goldman, 
knowing  that  Katie  was  unchaste,  by  false  representations  that  she 
was  virtuous  induced  the  plaintiff  to  marry  her,  he  was  entitled  to 
recover  damages,  and  the  jury  found  a  verdict  in  his  favor  for  $2,000. 
While  no  precedent  is  cited  for  such  an  action,  it  does  not  follow  that 
there  is  no  remedy  for  the  wrong,  because  every  form  of  action,  when 
brought  for  the  first  time,  must  have  been  without  a  precedent  to  sup- 
port it.  Courts  sometimes  of  necessity  abandon  their  search  for  prece- 
dents, and  yet  sustain  a  recovery  upon  legal  principles  clearly  applica- 
ble to  the  new  state  of  facts,  although  there  was  no  direct  precedent 
for  it,  because  there  had  never  been  an  occasion  to  make  one.  In  re- 
mote times,  when  actions  were  so  carefully  classified  that  a  mistake  in 
name  was  generaly  fatal  to  the  case,  a  form  of  remedy  was  devised 
by  the  courts  to  cover  new  wrongs  as  they  might  occur,  so  as  to  pre- 
vent a  failure  of  justice.  This  was  called  an  "action  on  the  case,"  which 
was  employed  where  the  right  to  sue  resulted  from  the  peculiar  cir- 
cumstances of  the  case,  and  for  which  the  other  forms  of  action  gave 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §  15. 


CASES   OF   NOVEL   IMPRESSION  17 

no  remedy.  26  Am.  &  Eng.  Enc.  Law,  694.  For  instance,  the  action 
for  enticing  away  a  man's  wife,  now  well  established,  was  at  first 
earnestly  resisted  upon  the  ground  that  no  such  action  had  ever  been 
brought.  In  an  early  case  the  court  answered  this  position  by  saying : 
"The  first  general  objection,  is  that  there  is  no  precedent  of  any  such 
action  as  this,  and  that,  therefore,  it  will  not  lie;  and  the  objection  is 
founded  on  Litt.  §  108,  and  Co.  Litt.  81b,  and  several  other  books. 
But  this  general  rule  is  not  applicable  to  the  present  case.  It  would  be 
if  there  had  been  no  special  action  on  the  case  before.  A  special  ac- 
tion on  the  case  was  introduced  for  this  reason:  That  the  law  will 
never  suffer  an  injury  and  a  damage  without  a  remedy,  but  there  must 
be  new  facts  in  every  special  action  on  the  case."  Winsmore  v.  Green- 
bank,  Willes,  577,  580.  As  was  recently  said  by  this  court  in  an  action 
then  without  precedent :  "If  the  most  that  can  be  said  is  that  the  case 
is  novel,  and  is  not  brought  plainly  within  the  limits  of  some  adjudged 
case,  we  think  such  fact  not  enough  to  call  for  a  reversal  of  the  judg- 
ment." Piper  v.  Hoard,  107  N.  Y.  73,  76,  13  N.  E.  626,  629  (1  Am. 
St.  Rep.  789).  The  question  therefore  is  not  whether  there  is  any 
precedent  for  the  action,  but  whether  the  defendant  inflicted  such  a 
wrong  upon  the  plaintiff  as  resulted  in  lawful  damages.  The  defend- 
ant by  deceit  induced  the  plaintiff  to  enter  into  a  marriage  contract, 
whereby  he  assumed  certain  obligations,  and  became  entitled  to  cer- 
tain rights.  Among  the  obligations  assumed  was  the  duty  of  support- 
ing his  wife  in  sickness  and  in  health,  and  he  discharged  this  obliga- 
tion by  expending  money  to  fit  up  rooms  for  housekeeping,  in  keeping 
house  with  his  wife,  and  caring  for  her  during  confinement,  when  she 
bore  a  child,  not  to  him,  but  to  the  defendant.  Among  the  rights 
acquired  was  the  right  to  his  wife's  services,  companionship,  and  so- 
ciety. By  the  fraudulent  conduct  of  the  defendant,  he  was  not  only 
compelled  to  expend  money  to  support  a  woman  whom  he  would  not 
otherwise  have  married,  but  was  also  deprived  of  her  services  while 
she  was  in  childbed.  He  thus  sustained  actual  damages  to  some  ex- 
tent ;  and  as  the  wrong  involved  not  only  malice,  but  moral  turpitude 
also,  in  accordance  with  the  analogies  of  the  law  upon  the  subject  the 
jury  had  the  right  to  make  the  damages  exemplary.  By  thus  apply- 
ing well-settled  principles  upon  which  somewhat  similar  actions  are 
founded,  this  action  can  be  sustained,  because  there  was  a  wrongful 
act  in  the  fraud,  that  was  followed  by  lawful  damages,  in  the  loss  of 
money  and  services.  The  fact  that  the  corruption  of  the  plaintiff's 
wife  was  before  he  married  her  does  not  affect  the  right  of  action, 
as  the  wrong  done  to  him  was  not  by  her  defilement,  but  by  the  rep- 
resentation of  the  defendant  that  she  was  pure  when  he  knew  that  she 
was  impure,  in  order  to  bring  about  the  marriage.  It  is  difficult  to  see 
why  a  fraud  which,  if  practiced  with  reference  to  a  contract  relating  to 
property  merely,  would  support  an  action,  should  not  be  given  the  same 
CHAP.CAS.TOETS — 2 


18  THE  TORT  CONCEPT 

effect  when  it  involves  a  contract  affecting,  not  only  property  rights, 
but  also  the  most  sacred  relation  of  life.  Fraudulent  representations 
with  reference  to  the  amount  of  property  belonging  to  either  party  to 
a  proposed  marriage,  made  by  a  third  person  for  the  purpose  of  bring- 
ing about  the  marriage,  are  held  to  constitute  an  actionable  wrong,  and 
the  usual  remedy  is  to  require  the  person  guilty  of  the  fraud  to  make 
his  representations  good.  Piper  v.  Hoard,  supra ;  Montefiori  v.  Monte- 
fiori,  1  W.  Bl.  363,  Ath.  Mar.  Sett.  484.  In  such  cases  the  injury  is 
more  tangible,  and  the  measure  of  damages  more  readily  applied,  than 
in  the  case  before  us;  but  both  rest  upon  the  principle  that  he  who 
by  falsehood  and  fraud  induces  a  man  to  marry  a  woman  is  guilty 
of  a  wrong  that  may  be  remedied  by  an  action,  the  amount  of  dam- 
ages to  be  recovered  depending  upon  the  circumstances  of  the  particu- 
lar case. 

We  have  thus  far  considered  the  right  of  action  as  resting  upon 
some  pecuniary  loss,  which,  although  trifling  in  amount,  may  be  recov- 
ered as  a  matter  of  right,  leaving  it  to  the  jury,  in  their  sound  dis- 
cretion, as  in  a  case  for  the  seduction  of  a  child  or  servant,  to  am- 
plify the  damages  by  way  of  punishment  and  example.  We  think, 
however,  that  the  action  can  be  maintained  upon  a  broader  and  more 
satisfactory  ground,  and  that  is  the  loss  of  consortium,  or  the  right  of 
the  husband  to  the  conjugal  fellowship  and  society  of  his  wife.  The 
loss  of  consortium  through  the  misconduct  of  a  third  person  has  long 
been  held  an  actionable  injury,  without  proof  of  any  pecuniary  loss. 
Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553; 
Hutcheson  v.  Peck,  5  Johns.  196;  Hermance  v.  James,  32  How.  Prac. 
142.  As  has  been  well  said  by  a  recent  writer :  "To  entice  away,  or 
corrupt  the  mind  and  affection  of,  one's  consort,  is  a  civil  wrong,  for 
which  the  offender  is  liable  to  the  injured  husband  or  wife.  The  gist 
of  the  action  is  not  in  the  loss  of  assistance,  but  the  loss  of  consortium 
of  the  wife  or  husband,  under  which  term  are  usually  included  the  per- 
son's affection,  society,  or  aid."  Bigelow,  Torts,  153.  The  damages 
are  caused  by  the  wrongful  deprivation  of  that  to  which  the  husband 
or  wife  is  entitled  by  virtue  of  the  marriage  contract.  They  rest  upon 
the  loss  of  a  right  which  the  marriage  relation  gives,  and  of  which  it 
is  an  essential  feature.  Whether  that  right  is  wrongfully  taken  away 
after  it  is  acquired,  or  the  person  entitled  to  it  is  wrongfully  prevented 
from  acquiring  it,  does  not  change  the  effect  or  lessen  the  injury. 
While  the  plaintiff  has  not  been  actually  deprived  of  the  society  of  his 
wife,  he  has  been  deprived  of  that  which  made  her  society  of  any 
value,  tfie  same  as  if  she  had  been  seduced  after  marriage.  Although 
the  formal  right  to  consortium  may  remain,  the  substance  has  been 
taken  away.  In  other  words,  when  he  entered  into  the  marriage  rela- 
tion he  was  entitled  to  the  company  of  a  virtuous  woman,  yet  through 
the  fraud  of  the  defendant  that  right  never  came  to  him.  He  has 
never  enjoyed  the  chief  benefit  springing  from  the  contract  of  mar- 


CASES   OF   NOVEL   IMPRESSION  19 

riage,  which  is  the  comfort,  founded  upon  affection  and  respect,  derived 
from  conjugal  society.  If  the  defendant  had  deprived  the  plaintiff 
of  his  right  to  consortium  after  marriage,  the  law  would  have  afforded 
a  remedy  by  the  award  of  damages.  Yet  the  plaintiff,  through  the 
fault  of  the  defendant,  has  suffered  a  loss  of  the  same  nature  and  to 
the  same  extent,  except  that,  instead  of  losing  what  he  once  had,  he 
has  been  prevented  from  getting  it  when  he  was  entitled  to  it.  This 
is  a  difference  in  form  only,  and  is  without  substantial  foundation.  The 
injury,  although  effected  by  fraud  before  marriage,  instead  of  by  seduc- 
tion after  marriage,  was  the  same,  and  why  should  not  the  remedy 
be  the  same?  While  the  method  of  inflicting  the  injury  is  not  the 
same,  as  it  is  tortious  in  character,  has  substantially  the  same  effect, 
and  causes  damages  of  the  same  nature  and  to  the  same  extent,  why 
should  damages  be  recovered  in  the  one  case  if  not  in  the  other? 
Where  false  representations  are  willfully  made  as  to  a  material  fact, 
for  the  purpose  of  inducing  another  to  act  upon  them,  and  he  does  so 
act  to  his  injury,  he  may  recover  such  damages  as  proximately  result 
from  the  deception.  The  representations  in  this  case,  as  the  jury  has 
found,  were  made  to  promote  the  marriage,  and  they  were  false,  as 
the  defendant  well  knew.  They  were  clearly  material.  The  plaintiff 
acted  upon  them,  and  was  thereby  injured;  for  he  made  a  contract 
entitling  him  to  certain  rights,  which  he  has  not  received,  and  which 
the  defendant  knew  he  could  never  receive.  Here  are  all  the  elements 
of  a  good  cause  of  action  founded  upon  fraud  resulting  in  damage.  The 
contract  induced  by  the  fraud  was  of  a  peculiar  nature,  but  it  was 
in  law  simply  a  contract,  conferring  certain  rights,  and  imposing  cer- 
tain obligations.  While  it  is  not  agreeable  to  treat  a  subject  of  sacred 
importance  upon  this  narrow  basis,  it  is  necessary  to  do  so,  for  our 
law  considers  marriage  in  no  other  light  than  as  a  civil  contract.  If 
the  defendant  had  induced  the  plaintiff  to  enter  into  any  other  contract 
by  making  false  statements  of  fact,  which  if  true  would  have  made 
the  contract  more  valuable,  he  would  have  been  liable  for  all  the  dam- 
ages that  naturally  resulted.  If  he  had  induced  the  very  marriage  con- 
tract under  consideration  by  representing  to  the  plaintiff  that  he  owed 
his  proposed  wife  a  certain  sum  of  money,  according  to  the  common 
law,  which  entitles  the  husband  to  the  personal  property  of  his  wife, 
he  could  have  been-  compelled  to  make  his  representations  good  by  the 
payment  of  that  sum.  Montefiori  v.  Montefiori,  supra;  Redman  v. 
Redman,  1  Vern.  348;  Neville  v.  Wilkinson,  1  Brown,  Ch.  Cas.  543; 
Scott  v.  Scott,  1  Cox,  378.  These  cases,  as  well  as  the  more  important 
case  of  Piper  v.  Hoard,  supra,  rest  upon  the  principle  that  fraudulent 
representations  as  to  the  pecuniary  condition  of  one  party  to  a  proposed 
marriage,  made  by  a  third  person  to  the  other  party  thereto,  in  order 
to  promote  the  marriage,  are  actionable,  and  authorize  the  recovery 
of  such  damages  as  may  be  proved.  In  this  case  we  have  a  representa- 
tion that  did  not  relate  to  property  directly,  although  it  involved  rights 


20  THE  TORT  CONCEPT 

in  the  nature  of  property,  but  did  relate  to  character,  and  so  vitally 
that  its  falsity  was  destructive  of  all  happiness  belonging  to  the  plain- 
tiff by  virtue  of  his  marriage.  The  injury  was  not  merely  sentimental, 
for,  as  has  been  shown,  it  extended  to  a  right  which  the  law  recognizes 
as  of  pecuniary  value,  and  for  the  wrongful  destruction  of  which  it 
awards  damages.  We  think  that  the  facts  found  warrant  the  recov- 
ery, and,  after  examining  all  the  exceptions,  are  of  the  opinion  that  the 
judgment  should  be  affirmed,  with  costs.  All  concur,  except  B ART- 
LETT,  J.,  not  voting.  Judgment  affirmed. 


RESPONSIBILITY— CONDITION  OF  MIND  21 


RESPONSIBILITY  AS   DEPENDENT  UPON   CONDITION 

OF  MIND 

I.  Voluntary  Acts  * 

i 

1.  ACCIDENT* 


STANLEY  v.  POWELL. 

(Queen's  Bench  Division,  [1891].     1  Q.  B.  D.  86.) 

DENMAN,  J.  This  case  was  tried  before  me  and  a  special  jury  at 
the  last  Maidstone  Summer  Assizes. 

In  the  statement  of  claim  the  plaintiff  alleged  that  the  defendant 
had  negligently  and  wrongfully  and  unskilfully  fired  his  gun  and 
wounded  the  plaintiff  in  his  eye,  and  that  the  plaintiff,  in  consequence, 
had  lost  his  sight  and  suffered  other  damage.  The  defendant  denied 
the  negligence  alleged.  After  the  evidence  on  both  sides,  which  was 
conflicting,  had  been  heard,  I  left  the  three  following  questions  to  the 
jury:  1.  Was  the  plaintiff  injured  by  a  shot  from  defendant's  gun? 
2.  Was  the  defendant  guilty  of  negligence  in  firing  the  charge  to 
which  that  shot  belonged  as  he  did  ?  3.  Damages. 

The  undisputed  facts  were  that  on  November  29,  1888,  the  defend- 
ant and  several  others  were  pheasant  shooting  in  a  party,  some  being 
inside  and  some  outside  of  a  wood  which  the  beaters  were  beating. 
The  right  of  shooting  was  in  one  Greenwood,  who  was  of  the  party. 
The  plaintiff  was  employed  by  Greenwood  to  carry  cartridges  and  the 
game  which  might  be  shot.  Several  beaters  were  driving  the  game 
along  a  plantation  of  saplings  towards  an  open  drive.  The  plaintiff 
stood  just  outside  a  gate  which  led  into  a  field  outside  the  plantation 
at  the  end  of  the  drive.  The  defendant  was  walking  along  in  that 
field  a  few  yards  from  the  hedge  which  bounded  the  plantation.  As 
he  was  walking  along  a  pheasant  rose  inside  the  plantation;  the  de- 
fendant fired  one  barrel  at  this  bird,  and,  according  to  the  evidence 
for  the  defendant,  struck  it  with  his  first  shot.  There  was  a  considera- 
ble conflict  of  evidence  as  to  details;  but  the  jury  must,  I  think,  be 
taken  to  have  adopted  the  version  of  the  facts  sworn  to  by  the  defend- 
ant's witnesses.  They  swore  that  the  bird,  when  struck  by  the  first 
shot,  began  to  lower  and  turn  back  towards  the  beaters,  whereupon 
the  defendant  fired  his  second  barrel  and  killed  the  bird,  but  that  a 
shot,  glancing  from  the  bough  of  an  oak  which  was  in  or  close  to  the 
hedge,  and  striking  the  plaintiff,  must  have  caused  the  injury  com- 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  17-25. 

2  For  discussion  of  principles,  see  Chapin  on  Torts,  §  17. 


22  RESPONSIBILITY — CONDITION  OF  MIND 

plained  of.  The  oak  in  question,  according  to  the  defendant's  evidence, 
was  partly  between  the  defendant  and  the  bird  when  the  second  bar- 
rel was  fired,  but  it  was  not  in  a  line  with  the  plaintiff,  but,  on  the  con- 
trary, so  much  out  of  that  line  that  the  shot  must  have  been  diverted 
to  a  considerable  extent  from  the  direction  in  which  the  gun  must  have 
been  pointed  in  order  to  hit  the  plaintiff.  The  distance  between  the 
plaintiff  and  the  defendant,  in  a  direct  line,  when  the  second  barrel 
was  fired,  was  about  thirty  yards.  The  case  for  the  plaintiff  was 
entirely  different;  but  I  think  it  must  be  held  that  the  jury  took  the 
defendant's  account  of  the  matter,  for  they  found  the  second  question 
left  to  them  in  the  negative.  Before  summing  up  the  case  to  the  jury, 
I  called  the  attention  of  the  parties  to  the  doctrine  which  seemed  to 
have  been  laid  down  in  some  old  cases,  that,  even  in  the  absence  of 
negligence,  an  action  of  trespass  might  lie;  and  it  was  agreed  that  I 
should  leave  the  question  of  negligence  to  the  jury,  but  that,  if  neces- 
sary, the  pleadings  were  deemed  to  have  been  amended  so  as  to  raise 
any  case  or  defence  open  upon  the  facts  with  liberty  to  the  court  to 
draw  inferences  of  fact,  and  that  the  damages  should  be  assessed  con- 
tingently. The  jury  assessed  them  at  £100.  I  left  either  party  to 
move  the  court  for  judgment ;  but  it  was  afterwards  agreed  that  the 
case  should  be  argued  before  myself  on  further  consideration,  and 
that  I  should  give  judgment,  notwithstanding  that  I  had  left  the  par- 
ties to  move  the  court,  as  though  I  had  originally  reserved  it  for  fur- 
ther consideration  before  myself. 

Having  heard  the  arguments,  I  am  of  opinion  that  by  no  amendment 
that  could  be  made  consistently  with  the  finding  of  the  jury  could  I 
properly  give  judgment  for  the  plaintiff.  It  was  contended  on  his 
behalf  that  this  was  a  case  in  which  an  action  of  trespass  would  have 
lain  before  the  Judicature  Acts ;  and  this  contention  was  mainly  found- 
ed on  certain  dicta  which,  until  considered  with  reference  to  those  cases 
in  which  they  are  uttered,  seem  to  support  that  contention;  but  no 
decision  was  quoted,  nor  do  I  think  that  any  can  be  found  which 
goes  so  far  as  to  hold,  that  if  A.  is  injured  by  a  shot  from  a  gun  fired 
at  a  bird  by  B.,  an  action  of  trespass  will  necessarily  lie,  even  though 
B.  is  proved  to  have  fired  the  gun  without  negligence  and  without  in- 
tending to  injure  the  plaintiff  or  to  shoot  in  his  direction. 

The  jury  having  found  that  there  was  no  negligence  on  the  part 
of  the  defendant,  the  most  favorable  way  in  which  it  is  now  possible 
to  put  the  case  for  the  plaintiff  is  to  consider  the  action  as  brought 
for  a  trespass,  and  to  consider  that  the  defendant  has  put  upon  the 
record  a  defence  denying  negligence,  and  specifically  alleging  the  facts 
sworn  to  by  his  witnesses,  which  the  jury  must  be  considered  to  have 
found  proved,  and  then  to  consider  whether  those  facts,  coupled  with 
the  absence  of  negligence  established  by  the  jury,  amount  to  an  ex- 
cuse in  law. 

The  earliest  case  relied  upon  by  the  plaintiff  was  one  in  the  year  book 


VOLUNTARY   ACTS  23 

21  Hen.  7,  28  A.,  which  is  referred  to  by  Grose,  J.,  in  the  course  of 
the  argument  in  Leame  v.  Bray,  3  East,  593,  to  be  mentioned  presently 
in  these  words :  "There  is  a  case  put  in  the  year  book  21  Hen.  7,  28 
A.,  that  where  one  shot  an  arrow  at  a  mark  which  glanced  from  it 
and  struck  another,  it  was  holden  to  be  trespass."  Returning  to  the 
case  in  the  year  book,  it  appears  that  the  passage  in  question  was  a 
mere  dictum  of  Rede,  who  (See  5  Foss'  Lives  of  the  Judges,  p.  230) 
was  at  the  time  (1506)  either  a  judge  of  the  King's  Bench  or  C.  J. 
of  the  Common  Pleas,  which  he  became  in  October  in  that  year,  in 
a  case  of  a  very  different  kind  from  that  in  question,  and  it  only 
amounts  to  a  statement  that  an  action  of  trespass  may  lie  even  where 
the  act  done  by  the  defendant  is  unintentional.  The  words  relied  on 
are,  "Mes  6u  on  tire  a  les  buts  et  blesse  un  home,  coment  que  est 
incontre  sa  volonte,  il  sera  dit  un  trespasser  incontre  son  entent."  But 
in  that  very  passage  Rede  makes  observations  which  show  that  he 
has  in  his  mind  cases  in  which  that  which  would  be  prima  facie  a  tres- 
pass may  be  excused.  The  next  case  in  order  of  date  relied  upon  for 
the  plaintiff  was  Weaver  v.  Ward,  Hob.  134,  decided  in  1607.  There 
is  no  doubt  that  that  case  contains  dicta  which  per  se  would  be  in  favor 
of  the  plaintiff,  but  it  also  contains  the  following  summing  up  of  the 
law  applicable  to  cases  of  unintentional  injury  by  acts  which  are  prima 
facie  trespasses:  "Therefore  no  man  shall  be  excused  of  a  trespass 
*  *  *  except  it  may  be  judged  utterly  without  his  fault" — showing 
clearly  that  there  may  be  such  cases.  That  case,  after  all,  only  decided 
that  where  the  plaintiff  and  defendant  were  skirmishing  as  soldiers  of 
the  train-band,  and  the  one,  "casualiter,  et  per  infortunium,  et  contra 
voluntatem  suam"  (which  must  be  translated  "accidently  and  involun- 
tarily"), shot  the  other,  an  action  of  trespass  would  lie,  unless  he 
could  show  that  such  involuntary  and  accidental  shooting  was  done 
under  such  circumstances  as  utterly  to  negative  negligence.  Such 
cases  may  easily  be  supposed,  in  which  there  could  be  no  two  opinions 
about  the  matter ;  but  other  cases  may,  as  the  present  case  did,  involve 
considerable  conflicts  of  evidence  and  opinion  which  until  recently  a 
jury  only  could  dispose  of.  The  case  of  Gibbons  v.  Pepper,  4  Mod. 
104,  decided  in  1695,  merely  decided  that  a  plea  merely  showing  that 
an  accident  caused  by  a  runaway  horse  was  inevitable  was  a  bad  plea 
in  an  action  of  trespass,  because,  if  inevitable,  that  was  a  defence  un- 
der the  general  issue.  It  was  a  mere  decision  on  the  pleading  and  laid 
down  nothing  as  regards  the  point  raised  in  the  present  case.  The 
concluding  words  of  the  judgment  which  show  clearly  the  ratio  deci- 
dendi  of  that  case  are  these:  "He  should  have  pleaded  the  general 
issue,  for  if  the  horse  ran  away  against  his  will  he  would  have  been 
found  not  guilty,  because  in  such  a  case  it  cannot  be  said  with  any 
color  of  reason  to  be  a  battery  in  the  rider."  The  more  modern  cases 
of  \Yakeman  v.  Robinson,  1  Bing.  213,  and  Hall  v.  Fearnley,  3  Q.  B. 
919.  lay  down  the  same  rule  as  regards  the  pleading  point,  though  tb* 


24  RESPONSIBILITY CONDITION  OP  MIND 

former  case  may  also  be  relied  upon  as  an  authority  by  way  of  dictum 
in  favor  of  the  plaintiff  and  the  latter  may  be  fairly  relied  upon  by 
the  defendant;  for  Wightman,  J.,  in  his  judgment  explains  Wakeman 
v.  Robinson  thus :  "The  act  of  the  defendant"  (viz.,  driving  the  cart 
at  the  very  edge  of  a  narrow  pavement  on  which  the  plaintiff  was 
walking,  so  as  to  knock  the  plaintiff  down)  "was  prima  facie  unjustifi- 
able, and  required  an  excuse  to  be  shown.  When  the  motion  in  this 
case  was  first  made,  I  had  in  my  recollection  the  case  of  Wakeman  v. 
Robinson.  It  was  there  agreed  that  an  involuntary  act  might  be  a  de- 
fence on  the  general  issue.  The  decision  indeed  turned  on  a  different 
point ;  but  the  general  proposition  is  laid  down.  I  think  the  omission 
to  plead  the  defence  here  deprived  the  defendant  of  the  benefit  of  it, 
and  entitled  the  plaintiff  to  recover." 

But  in  truth  neither  case  decides  whether,  where  an  act  such  as 
discharging  a  gun  is  voluntary,  but  the  result  injurious  without  negli- 
gence, an  action  of  trespass  can  nevertheless  be  supported  as  against 
a  plea  pleaded  and  proved,  and  which  the  jury  find  established  to  the 
effect  that  there  was  no  negligence  on  the  part  of  the  defendant. 

The  case  of  Underwood  v.  Hewson,  1  Str.  596,  decided  in  1724, 
was  relied  on  for  the  plaintiff.  The  report  is  very  short :  "The  de- 
fendant was  uncocking  a  gun,  and  the  plaintiff  standing  to  see  it,  it 
went  off  and  wounded  him ;  and  at  the  trial  it  was  held  that  the  plain- 
tiff might  maintain  trespass  strange  pro  defendente."  The  marginal 
note  in  Nolan's  edition  of  1795,  not  necessarily  Strange's  own  composi- 
tion, is  this,  "Trespass  lies  'for  an  accidental  hurt ;"  and  in  that  edi- 
tion there  is  a  reference  to  Buller's  N.  P.,  p.  16.  On  referring  to 
Buller,  p.  16,  where  he  is  dealing  with  Weaver  v.  Ward,  14  Jac.  1, 
Hob.  134,  I  find  he  writes  as  follows:  "So  (it  is  no  battery)  if  one 
soldier  hurt  another  in  exercise;  but  if  he  plead  it  he  must  set  forth 
the  circumstances,  so  as  to  make  it  appear  to  the  court  that  it  was  in- 
evitable, and  that  he  committed  no  negligence  to  give  occasion  to  the 
hurt,  for  it  is  not  enough  to  say  that  he  did  it  casualiter,  et  per  in- 
fortunium,  et  contra  voluntatem  suam;  for  no  man  shall  be  excused 
of  a  trespass,  unless  it  be  justified  entirely  without  his  default,  Weaver 
v.  Ward ;  and  therefore  it  has  been  holden  that  an  action  lay  where 
the  plaintiff  standing  by  to  see  the  defendant  uncock  his  gun  was  ac- 
cidently  wounded,  Underwood  v.  Hewson,"  T.  10  Geo.  1  per  Fortescue 
and  Raymond  in  Midd.,  Str.  596.  On  referring  back  to  Weaver  v. 
Ward,  I  can  find  nothing  in  a  defence  in  the  case  of  a  trespass  it  is 
necessary  to  show  that  the  act  was  inevitable.  If  inevitable,  it  would 
seem  that  there  was  a  defence  under  the  general  issue ;  but  a  distinc- 
tion is  drawn  between  an  act  which  is  inevitable  and  an  act  which  is 
excusable,  and  what  Weaver  v.  Ward  really  lays  down  is  that  "no  man 
shall  be  excused  of  a  trespass  except  it  may  be  judged  utterly  without 
his  fault." 

Day  v.  Edwards,  5  T.  R.  648,  merely  decides  that  where  a  man  neg- 


VOLUNTARY  ACTS  25 

ligently  drives  a  cart  against  the  plaintiff's  carriage,  the  injury  being 
committed  by  the  immediate  act  complained  of,  the  remedy  must  be 
trespass,  and  not  case. 

But  the  case  upon  which  most  reliance  was  placed  by  the  plaintiff's 
counsel  was  Leame  v.  Bray,  3  East,  593.  That  was  an  action  of  tres- 
pass in  which  the  plaintiff  complained  that  the  defendant  with  force 
and  arms  drove  and  struck  a  chaise  which  he  was  driving  on  the  high- 
way against  the  plaintiff's  curicle,  which  the  plaintiff's  servant  was 
driving,  by  means  whereof  the  servant  was  thrown  out,  and  the  horses 
ran  away,  and  the  plaintiff,  who  jumped  out  to  save  his  life,  was  in- 
jured. The  facts  stated  in  the  report  include  a  statement  that  "the  ac- 
cident happened  in  a  dark  night,  owing  to  the  defendant  driving  his 
carriage  on  the  wrong  side  of  the  road,  and  the  parties  not  being  able 
to  see  each  other,  and  that  if  the  defendant  had  kept  his  right  side 
there  was  ample  room  for  the  carriages  to  have  passed  without  in- 
jury." The  report  goes  on  to  state :  "But  it  did  not  appear  that  blame 
was  imputable  to  the  defendant  in  any  other  respect  as  to  the  manner 
of  his  driving.  It  was  therefore  objected  for  the  defendant  that,  the  in- 
jury having  happened  from  negligence  and  not  wilfully,  the  proper  rem- 
edy was  by  an  action  on  the  case,  and  not  of  trespass  vi  et  armis ;  and* 
the  plaintiff  was  thereupon  nonsuited."  On  the  argument  of  the  rule  to 
set  aside  the  verdict  the  whole  discussion  turned  upon  the  question 
whether  injury  was,  as  put  by  Lawrence,  J.,  at  page  596  of  the  re- 
port, immediate  from  the  defendant's  act,  or  consequential  only  from 
it,  and  in  the  result  the  nonsuit  was  set  aside.  But  it  clearly  appears 
from  the  report  that  there  was  evidence  upon  which  the  jury  might 
have  found  negligence,  and  indeed  the  defendant's  counsel  assumed 
it  in  the  very  objection  which  prevailed  with  Lord  Ellenborough  when 
he  nonsuited  the  plaintiff.  There  is  nothing  in  any  of  the  judgments 
to  show  that  if  in  that  case  a  plea  had  been  pleaded  denying  any  neg- 
ligence, and  the  jury  had  found  that  the  defendant  was  not  guilty  of 
any  negligence,  but  (for  instance)  that  the  accident  happened  wholly 
through  the  darkness  of  the  night  making  it  impossible  to  distinguish 
one  sid,e  of  the  road  from  the  other  and  without  negligence  on  either 
side,  the  court  would  have  held  that  the  defendant  would  have  been 
liable  either  in  trespass  or  in  case. 

All  the  cases  to  which  I  referred  were  before  the  Court  of  Exchequer 
in  1875,  in  the  case  of  Holmes  v.  Mather,  Law  Rep.  10  Ex.  261,  and 
Bramwell,  B.,  in  giving  judgment  in  that  case,  dealt  with  them  thus: 
"As  to  the  cases  cited,  most  of  them  are  really  decisions  on  the  form 
of  action,  whether  case  or  trespass.  The'  result  of  them  is  this,  and 
it  is  intelligible  enough :  If  the  act  that  does  an  injury  is  an  act  of  di- 
rect force  vi  et  armis,  trespass  is  the  proper  remedy  (if  there  is  any 
remedy),  where  the  act  is  wrongful  either  as  being  willful  or  as  being 
the  result  of  negligence.  Where  the  act  is  not  wrongful  for  either  of 
these  reasons,  no  action  is  maintainable,  though  trespass  would  be  the 


U6  RESPONSIBILITY CONDITION  OF  MIND 

proper  form  of  action  if  it  were  wrongful.    That  is  the  effect  of  the 
decisions." 

This  view  of  the  older  authorities  is  in  accordance  with  a  passage 
cited  by  Mr.  Dickens  from  Bacon's  Abridgment,  Trespass,  I.,  p.  706, 
with  a  marginal  reference  to  Weaver  v.  Ward.  In  Bacon  the  word 
"inevitable"  does  not  find  a  place.  "If  the  circumstance  which  is  spe- 
cially pleaded  in  an  action  of  trespass  do  not  make  the  act  complained 
of  lawful"  (by  which  I  understand  justifiable  even  if  purposely  done 
to  the  extent  of  purposely  inflicting  the  injury,  as,  for  instance,  in  a 
case  of  self-defence)  "and  only  make  it  excusable,  it  is  proper  to 
plead  this  circumstance  in  excuse ;  and  it  is  in  this  case  necessary 
for  the  defendant  to  show  not  only  that  the  act  complained  of  was 
accidental"  (by  which  I  understand  that  the  injury  was  unintentional), 
"but  likewise  that  it  was  not  owing  to  neglect  or  want  of  due  caution." 
In  the  present  case  the  plaintiff  sued  in  respect  of  an  injury  owing 
to  the  defendant's  negligence — there  was  no  pretence  for  saying  that 
it  was  intentional  so  far  as  any  injury  to  the  plaintiff  was  concerned — 
and  the  jury  negatived  such  negligence.  It  was  argued  that  neverthe- 
less, inasmuch  as  the  plaintiff  was  injured  by  a  shot  from  the  defend- 
ant's gun,  that  was  an  injury  owing  to  an  act  of  force  committed  by 
the  defendant,  and  therefore  an  action  would  lie.  I  am  of  opinion 
that  this  is  not  so,  and  that  against  any  statement  of  claini  which  the 
plaintiff  could  suggest  the  defendant  must  succeed  if  he  were  to  plead 
the  facts  sworn  to  by  the  witnesses  for  the  defendant  in  this  case,  and 
the  jury,  believing  those  facts,  as  they  must  now  be  taken  by  me  to 
have  done,  found  the  verdict  which  they  have  found  as  regards  neg- 
ligence. In  other  words,  I  am  of  opinion  that  if  the  case  is  regarded 
as  an  action  on  the  case  for  an  injury  by  negligence  the  plaintiff  has 
failed  to  establish  that  which  is  the  very  gist  of  such  an  action;  if, 
on  the  other  hand,  it  is  turned  into  an  action  for  trespass,  and  the 
defendant  is  (as  he  must  be)  supposed  to  have  pleaded  a  plea  deny- 
ing negligence  and  establishing  that  the  injury  was  accidental  in  the 
sense  above  explained,  the  verdict  of  the  jury  is  equally  fatal  to  the 
action.  I  am,  therefore,  of  opinion  that  I  am  bound  to  give  judgment 
for  the  defendant.  As  to  costs,  they  must  follow,  unless  the  defend- 
ant foregoes  his  right.  Judgment  for  the  defendant. 


MOTIVE  27 


II.  Motive* 


RADER  v.  DAVIS. 

-{Supreme  Court  of  Iowa,  1912.     154  Iowa,  306,  134  N.  W.  849,  38  L.  R.  A.  [N. 
S.]  131,  Ann.  Gas.  1914A,  1245.) 


,  J.«  Plaintiff  married  one  of  defendant's  daughters,  LilHe 
Mae  by  name,  in  March  of  the  year  1903,  and  as  a  result  thereof  one 
son  was  born  in  September  of  the  year  1904.  Because  of  plaintiff's 
ill  treatment,  the  wife  was  compelled  to  leave  him,  and  being  without 
means  she  returned,  with  her  son,  to  her  father's  home.  Thereafter 
she  commenced  a  divorce  action  against  the  plaintiff,  and  in  September 
of  the  year  1905  she  received  a  decree.  *  *  *  Plaintiff's  former 
wife  continued  to  live  with  defendant,  her  father,  and  some  time  in 
June  of  the  year  the  child  became  sick,  and  as  a  result  thereof  died 
on  or  about  July  16,  1909.  Arrangements  for  the  funeral  were  all 
made  by  the  mother,  and  the  defendant  consented  that  it  be  held  from 
his  home.  He  at  no  time  gave  any  directions  as  to  how  the  services 
should  be  conducted  or  who  should  be  permitted  to  attend;  but  there 
was  enough  testimony  to  justify  a  jury  in  finding  that  he,  defendant, 
said  to  one  Gray,  who  inquired  for  plaintiff  as  to  whether  or  not  he, 
plaintiff,  could  attend  the  funeral,  "That  he  did  not  want  them  coming 
around  him,  and  if  they  did  they  would  do  something  they  had  not 
ought  to  do."  Indeed,  it  is  admitted  in  defendant's  answer  that  at  all 
times  since  the  divorce  decree  was  rendered  he  had  denied  plaintiff 
the  right,  privilege,  or  opportunity  of  entering  in  or  upon  his  premises 
for  any  purpose.  This  denial  of  plaintiff's  right  to  go  upon  the  prem- 
ises seems  to  have  been  due  to  the  fact  that,  some  time  after  the  sep- 
aration of  plaintiff  and  his  wife,  he,  plaintiff,  and  defendant  had  an 
altercation  over  the  matter  in  which  plaintiff  assaulted  the  defendant 
and  knocked  him  down  in  one  of  the  streets  of  the  city  of  Boone. 

The  decrees  entered  in  the  divorce  case,  from  which  we  have  quoted, 
were  not  appealed  from  and  were  therefore  binding  upon  the  plaintiff 
herein.  By  the  terms  thereof,  he  was  in  effect  forbidden  from  visit- 
ing his  child  at  defendant's  home,  and  was  prohibited  from  visiting 
him  elsewhere  unless  he  paid  the  costs  of  the  proceedings  and  the  sum 
of  $2  per  month  for  the  child's  support.  Neither  of  these  things  was 
done,  so  that  it  is  clear  plaintiff  had  no  right  to  visit  the  child  while 
at  defendant's  home.  This  is  virtually  conceded.  But  plaintiff  insists 
that,  when  the  child  became  sick  and  finally  died,  these  facts  so  chang- 

8  For  discussion  of  principles,  see  Chapin  on  Torts,  §  23. 
*  A  portion  of  the  opinion  is  omitted. 


28  RESPONSIBILITY CONDITION   OF  MIND 

ed  the  situation  that,  as  a  matter  of  law,  he  had  an  absolute  right  not 
only  to  visit  the  child  while  alive,  but  also  to  attend  its  funeral  after 
death.  We  do  not  think  that  the  sickness  of  the  child  had  the  effect 
of  modifying  the  decrees  from  which  we  have  quoted.  They  were  ei- 
ther absolute  in  terms  or  so  qualified  that  plaintiff  had  no  rights  there- 
under until  he  performed  the  conditions  imposed  by  the  decrees.  This 
he  did  not  do. 

Assuming  that  the  death  of  the  child  so  changed  conditions  as  that 
the  decrees  were  inapplicable,  we  then  have  the  question,  Had  plaintiff 
either  an  absolute  or  qualified  right  to  attend  the  funeral  of  his  child 
which  was  being  held  from  defendant's  house?  He,  of  course,  ob- 
tained no  right  by  reason  of  his  former  wife  having  taken  up  her 
domicile  with  her  parents.  They  were  as  much  strangers  to  each  other 
as  if  they  had  never  been  married.  True,  the  child  was  of  his  own 
blood,  but  by  decree  of  court  he  had  lost  all  right  of  custody  or  control 
of  the  child,  and  it  was  for  the  mother  to  say  how  the  body  should  be 
controlled,  where  the  funeral  services  were  to  be  conducted,  and  where 
and  how  the  child  should  be  buried.  By  plaintiff's  misconduct  (as  con- 
clusively established  by  the  decree)  he  had  forfeited  all  rights  to  the 
custody  and  control  of  the  child  which  he  might  otherwise  have  had. 
So  that  plaintiff  had  neither  an  absolute  nor  a  qualified  right  to  control 
the  disposition  of  the  body  of  the  child  or  the  funeral  arrangements. 
But  it  is  said  that  he  had  the  right  to  attend  the  funeral  which  was 
being  held  at  defendant's  house;  and  that  whether  he  tried  or  not, 
and  conceding  defendant's  lawful  right  to  say  who  should  come  upon 
his  private  premises  for  any  purpose,  even  to  attend  a  funeral,  yet  if 
he,  defendant,  although  acting  within  his  strict  legal  rights,  maliciously 
denied  plaintiff  the  right  to  enter  the  premises  to  see  his  child,  or  to 
attend  the  funeral  services,  an  action  will  lie. 

The  questions  thus  presented  are  unique  in  character,'  and  naturally 
there  are  no  precedents  which  are  directly  in  point. 

At  common  law  the  duty  of  providing  sepulture  and  of  carrying  to 
the  grave  the  dead  body  decently  covered  was  cast  upon  the  person 
under  whose  roof  the  death  took  place;  for  such  a  person  could  not 
keep  the  body  unburied  nor  do  anything  which  prevented  Christian 
burial.  Commonwealth  v.  Susquehanna  Coal  Co.,  5  Kulp  (Pa.)  195; 
Scott  v.  Riley,  40  Leg.  Int.  (Pa.)  382. 

There  was  no  duty,  as  we  understand  it,  however,  to  conduct  a  pub- 
lic funeral,  and,  if  there  were,  private  funerals  are  so  common  in  this 
country  that  we  would  not  feel  disposed  to  say  that  public  services  are 
required  to  be  held.  Defendant  then  was  bound  to  provide  sepulture 
and  to  carry  the  body  to  the  grave ;  but  he  was  not  required  to  invite 
any  one  onto  his  premises  simply  to  see  the  dead  body  or  to  have  any 
sort  of  burial  services  for  the  public.  It  is  fundamental  of  course 
that  a  man's  dwelling  house  is  "his  castle,"  and  that  no  one  has  the 
right  to  enter  except  upon  invitation,  express  or  implied.  He  may 


MOTIVE  29 

exclude  whom  he  will  for  good  reason  or  for  no  reason,  without  lia- 
bility for  damages,  and  may  defend  his  home  against  all  intruders,  even 
to  the  extent  of  taking  life.  State  v.  Peacock,  40  Ohio  St.  333 ;  Pond 
v.  People,  8  Mich.  150;  State  v.  Scheele,  57  Conn.  307,  18  Atl.  256, 
14  Am.  St.  Rep.  106;  State  v.  Patterson,  45  Vt.  308,  12  Am.  Rep.  200. 

There  is  no  implied  invitation  to  any  one  to  attend  a  funeral  con- 
ducted from  a  private  dwelling  unless  it  be  announced  that  such  funeral 
is  public,  and  even  if  so  announced  the  license  or  invitation  may  be  re- 
voked and  any  one  denied  the  right  to  attend  whose  presence  might 
be  objectionable.  It  has  even  been  held  that  the  lord  of  the  castle 
may  so  far  exercise  his  authority  as  to  say  that  his  wife's  relatives 
may  not  visit  her,  either  in  sickness  or  in  health.  Rogers  on  Domestic 
Relations,  §  172.  See,  also,  cases  cited  in  21  Cyc.  at  page  1147,  among 
which  is  Shaw  v.  Shaw,  17  Conn.  189;  Commonwealth  v.  Wood,  97 
Mass.  225 ;  Lawrence  v.  Lawrence,  3  Paige  (N.  Y.)  267. 

The  mother  gave  no  intimation  that  she  wished  the  father  to  see 
the  child  either  while  sick  or  after  death,  and  defendant  certainly  had 
the  legal  right  to  exclude  plaintiff  from  his  premises  at  any  time  and 
under  all  circumstances.  But  it  is  said  that,  although  defendant  has 
this  legal  right,  he  could  not  exercise  the  same  maliciously,  and  that 
if  his  act  in  excluding  plaintiff  was  malicious  action  will  lie.  It  is 
true  that  in  some  circumstances  the  doing  of  a  perfectly  lawful  or 
legal  act  maliciously  will  give  ground  for  an  action;  but  we  do  not 
think  this  exceptional  rule  should  apply  here.  As  the  control  of  one's 
own  dwelling  is  absolute,  the  intent  with  which  he  excludes  one  there- 
from is  wholly  immaterial. 

The  rule  of  the  common  law  everywhere  prevailing  where  that 
system  is  in  force  is  that  the  doing  of  an  act,  lawful  in  itself,  does 
not  become  actionable  even  though  done  maliciously ;  that  is,  in 
a  vindictive  way.  Heald  v.  Carney,  11  C.  B.  903,  73  E.  C.  L.  993; 
Boyson  v.  Thome,  98  Cal.  578,  33  Pac.  492,  21  L.  R.  A.  233; 
Kelly  v.  Railroad,  93  Iowa,  452,  61  N.  W.  957 ;  Bohn  v.  Hollis,  54 
Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319. 
The  civil  law,  however,  deems  an  act  otherwise  lawful  in  itself  illegal 
if  done  with  the  malicious  intent  of  injuring  a  neighbor;  but  this  prin- 
ciple has  not  found  place  in  our  law  save  in  very  limited  sense.  Chase- 
man  v.  Richards,  7  H.  L.  Cases,  388. 

Generally  speaking  "malicious  motives  make  a  bad  act  worse,  but 
they  cannot  make  that  wrong  which  in  its  own  essence  is  lawful." 
Dawson  v.  Kemper,  32  Ohio  Law  J.  15;  Jenkins  v.  Fowler,  24  Pa. 
308.  See,  also,  notes  to  Letts  v.  Kessler,  40  L.  R.  A.  177.  The  case 
is  not  ruled  by  Dunshee  v.  Standard  Oil  Co.,  152  Iowa,  618,  132  N. 
W.  371,  36  L.  R.  A.  (N.  S.)  263,  and  other  like  cases  cited  in  the  opin- 
ion which  have  introduced  some  exceptions  to  the  general  rule  and  in 
effect  applied  the  civil  law  to  the  peculiar  facts  there  appearing.  In 
most,  if  not  all,  of  these  cases,  the  defendant  sought  to  promote  some 


30  RESPONSIBILITY CONDITION  OP  MIND 

pecuniary  or  beneficial  interest  either  of  his  own  or  of  some  stranger, 
and  the  question  was  whether  or  not  the  purpose  was  sufficiently  di- 
rect and  proximate  to  justify  the  conduct.  See,  also,  upon  this  subject, 
Passaic  Works  v.  Ely  Dry  Goods  Co.,  105  Fed.  163,  44  C.  C.  A.  426, 
62  L.  R.  A.  673,  and  exhaustive  note,  and  an  article  in  18  Harvard 
Law  Review  at  page  411. 

In  the  instant  case,  the  defendant  did  no  injury  to  the  property  of 
plaintiff,  nor  was  he  intending  to  secure  any  profit  to  himself  as  in' 
the  exceptional  cases  cited.  Plaintiff  had  no  right  to  attend  the  funeral, 
and  defendant  had  the  undoubted  right  to  keep  him  off  his  premises. 
Having  the  right  of  selecting  his  guests  or  visitors,  his  malicious  mo- 
tive in  excluding  one  does  not  give  that  one  a  right  of  recovery.  This 
is  the  effect  of  our  holding  in  Rizer  v.  Tapper,  133  Iowa,  628,  110  N. 
W.  1038. 

There  is  no  element  of  conspiracy  in  the  case,  and  no  ground  for 
recovery  is  shown  under  any  exceptional  rules  to  which  our  attention 
has  been  called. 

It  follows  that  the  trial  court  was  right  in  directing  the  verdict,  and 
the  judgment  entered  thereon  must  be,  and  it  is,  affirmed. 


LIABILITY RULES   GOVERNING  CAUSE  AND   EFFECT  31 


LIABILITY  UNDER  LEGAL  RULES  GOVERNING  CAUSE 

AND  EFFECT 

I.  Proximate  Cause  in  General x 


MILWAUKEE  &  ST.  P.  RY.  CO.  v.  KELLOGG. 
(Supreme  Court  of  the  United  States,  1876.    94  U.  S.  469,  24  L.  Ed.  256.) 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Iowa. 

Mr.  Justice  STRONG  2  delivered  the  opinion  of  the  court. 

This  was  an  action  to  recover  compensation  for  the  destruction  by 
fire  of  the  plaintiff's  sawmill  and  a  quantity  of  lumber,  situated  and 
lying  in  the  state  of  Iowa,  and  on  the  banks  of  the  river  Mississippi. 
That  the  property  was  destroyed  by  fire  was  uncontroverted.  From 
the  bill  of  exceptions,  it  appears :  That  the  "plaintiff  alleged  the  fire 
was  negligently  communicated  from  the  defendants'  steamboat  'Jennie 
Brown'  to  an  elevator  built  of  pine  lumber,  and  one  hundred  and 
twenty  feet  high,  owned  by  the  defendants,  and  standing  on  the  bank 
of -the  river,  and  from  the  elevator  to  the  plaintiff's  sawmill  and  lum- 
ber piles,  while  an  unusually  strong  wind  was  blowing  from  the  ele- 
vator towards  the  mill  and  lumber.  On  the  trial  it  was  admitted  that 
the  defendants  owned  the  steamboat  and  elevator;  that  the  mill  was 
five  hundred  and  thirty-eight  feet  from  the  elevator,  and  that  the 
nearest  of  the  plaintiff's  piles  of  lumber  was  three  hundred  and  eighty- 
eight  feet  distant  from  it.  *  *  *  " 

The  verdict  of  the  jury  was :  1st,  that  the  elevator  was  burned  from 
the  steamer  "Jennie  Brown";  2d,  that  such  burning  was  caused  by 
not  using  ordinary  care  and  prudence  in  landing  at  the  elevator,  under 
circumstances  existing  at  that  particular  time ;  and,  3d,  that  the  burn- 
ing of  the  mill  and  lumber  was  the  unavoidable  consequence  of  the 
burning  of  the  elevator. 

The  only  reasonable  construction  of  the  verdict  is,  that  the  fault  of 
the  defendants — in  other  words,  their  want  of  ordinary  care  and 
prudence — consisted  in  landing  the  steamer  at  the  elevator  in  the 
circumstances  then  existing,  when  a  gale  of  wind  was  blowing  towards 
it,  when  the  elevator  was  so  combustible  and  so  tall.  If  this  is  not 
the  meaning  of  the  verdict,  no  act  of  negligence,  of  want  of  care,  or 
of  fault  has  been  found.  And  this  is  one  of  the  faults  charged  in  the 
declaration.  It  averred  that,  while  the  wind  was  blowing  a  gale  from 
the  steamboat  towards  and  in  the  direction  of  the-  elevator,  the  de- 

1  For  discussion  of  principles,  see  Chapin-  on  Torts,  §  26. 

2  A  portion  of  the  opinion  is  omitted. 


32  LIABILITY — RULES   GOVERNING   CAUSE  AND   EFFECT 

fendants  carelessly  and  negligently  allowed,  permitted,  and  counseled 
(or,  as  stated  in  another  count,  "directed")  the  steamboat  to  approach 
and  lie  alongside  of  or  in  close  proximity  to  the  said -elevator.  This 
is  something  more  than  nonfeasance;  it  is  positive  action,  the  result, 
consequence,  or  outworking,  as  the  jury  have  found  it,  of  the  want 
of  such  care  as  should  have  been  exercised. 

The  next  exception  is  to  the  refusal  of  the  court  to  instruct  the  jury 
as  requested,  that  "if  they  believed  the  sparks  from  the  'Jennie  Brown' 
set  fire  to  the  elevator  through  the  negligence  of  the  defendants,  and 
the  distance  of  the  elevator  from  the  nearest  lumber  pile  was  three 
hundred  and  eighty-eight  feet,  and  from  the  mill  five  hundred  and 
twenty-eight  feet,  then  the  proximate  cause  of  the  burning  of  the  mill 
and  lumber  was  the  burning  of  the  elevator,  and  the  injury  was  too 
remote  from  the  negligence  to  afford  a  ground  for  a  recovery."  This 
proposition  the  court  declined  to  affirm,  and  in  lieu  thereof  submitted 
to  the  jury  to  find  whether  the  burning  of  the  mill  and  lumber  was  the 
result  naturally  and  reasonably  to  be  expected  from  the  burning  of 
the  elevator;  whether  it  was  a  result  which,  under  the  circumstances, 
would  naturally  follow  from  the  burning  of  the  elevator ;  and  whether 
it  was  the  result  of  the  continued  effect  of  the  sparks  from  the  steam- 
boat, without  the  aid  of  other  causes  not  reasonably  to  be  expected. 
All  this  is  alleged  to  have  been  erroneous.  The  assignment  presents 
the  oft-embarrassing  question,  what  is  and  what  is  not  the  proximate 
cause  of  an  injury.  The  point  propounded  to  the  court  assumed  that 
it  was  a  question  of  law  in  this  case ;  and  in  its  support  the  two  cases 
of  Ryan  v.  New  York  Central  Railroad  Co.,  35  N.  Y.  210,  91  Am. 
Dec.  49,  and  Pennsylvania  Railroad  Co.  v.  Kerr,  62  Pa.  353,  1  Am. 
Rep.  431,  are  relied  upon.  Those  cases  have  been  the  subject  of  much 
criticism  since  they  were  decided;  and  it  may,  perhaps,  be  doubted 
whether  they  have  always  been  quite  understood.  If  they  were  in- 
tended to  assert  the  doctrine  that  when  a  building  has  been  set  on 
fire  through  the  negligence  of  a  party,  and  a  second  building  has  been 
fired  from  the  first,  it  is  a  conclusion  of  law  that  the  owner  of  the 
second  has  no  recourse  to  the  negligent  wrongdoer,  they  have  not  been 
accepted  as  authority  for  such  a  doctrine,  even  in  the  states  where  the 
decisions  were  made.  Webb  v.  Rome,  Watertown  &  Ogdensburg  Rail- 
road Co.,  49  N.  Y.  420,  10  Am.  Rep.  389,  and  Pennsylvania  Railroad 
Co.  v.  Hope,  80  Pa.  373,  21  Am.  Rep.  100.  And  certainly  they  are  in 
conflict  with  numerous  other  decided  cases.  Kellogg  v.  Chicago  & 
Northwestern  Railroad  Co.,  26  Wis.  224,  7  Am.  Rep.  69;  Perley  v. 
Eastern  Railroad  Co.,  98  Mass.  414,  96  Am.  Dec.  645;  Higgins  v. 
Dewey,  107  Mass.  494,  9  Am.  Rep.  63;  Kent  v.  Toledo,  Peoria  & 
Warsaw  Railroad  Co.,  59  111.  349,  14  Am.  Rep.  13. 

The  true  rule  is  that  what  is  the  proximate  cause  of  an  injury  is 
ordinarily  a  question  for  the  jury.  It  is  not  a  question  of  science  or 
of  legal  knowledge.  It  is  to  be  determined  as  a  fact,  in  view  of  the 


PROXIMATE   CAUSE   IN   GENERAL  33 

circumstances  of  fact  attending  it.  The  primary  cause  may  be  the 
proximate  cause  of  a  disaster,  though  it  may  operate  through  successive 
instruments,  as  an  article  at  the  end  of  a  chain  may  be  moved  by  a 
force  applied  to  the  other  end,  that  force  being  the  proximate  cause 
of  the  movement,  or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the 
market  place.  2  Bl.  Rep.  892.  The  question  always  is,  Was  there 
an  unbroken  connection  between  the  wrongful  act  and  the  injury,  a 
continuous  operation  ?  Did  the  facts  constitute  a  continuous  succession 
of  events,  so  linked  together  as  to  make  a  natural  whole,  or  was  there 
some  new  and  independent  cause  intervening  between  the  wrong  and 
the  injury?  It  is  admitted  that  the  rule  is  difficult  of  application.  But 
it  is  generally  held  that,  in  order  to  warrant  a  finding  that  negligence, 
or  an  act  not  amounting  to  wanton  wrong,  is  the  proximate  cause  of 
an  injury,  it  must  appear  that  the  injury  was  the  natural  and  probable 
consequence  of  the  negligence  or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  the  attending  circumstances.  These 
circumstances,  in  a  case  like  the  present,  are  the  strength  and  direction 
of  the  wind,  the  combustible  character  of  the  elevator,  its  great  height, 
and  the  proximity  and  combustible  nature  of  the  sawmill  and  the 
piles  of  lumber. 

Most  of  these  circumstances  were  ignored  in  the  request  for  in- 
struction to  the  jury.  Yet  it  is  obvious  that  the  immediate  and  insep- 
arable consequence  of  negligently  firing  the  elevator  would  have  been 
very  different  if  the  wind  had  been  less,  if  the  elevator  had  been  a 
low  building  constructed  of  stone,  if  the  season  had  been  wet,  or  if 
the  lumber  and  the  mill  had  been  less  combustible.  And  the  defend- 
ants might  well  have  anticipated  or  regarded  the  probable  consequences 
of  their  negligence  as  much  more  far-reaching  than  would  have  been 
natural  or  probable  in  other  circumstances.  We  do  not  say  that  even 
the  natural  and  probable  consequences  of  a  wrongful  act  or  omission 
are  in  all  cases  to  be  chargeable  to  the  misfeasance  or  nonfeasance. 
They  are  not  when  there  is  a  sufficient  and  independent  cause  operat- 
ing between  the  wrong  and  the  injury.  In  such  a  case  the  resort  of 
the  sufferer  must  be  to  the  originator  of  the  intermediate  cause.  But 
when  there  is  no  intermediate  efficient  cause,  the  original  wrong  must 
be  considered  as  reaching  to  the  effect,  and  proximate  to  it.  The 
inquiry  must,  therefore,  always  be  whether  there  was  any  intermediate 
cause  disconnected  from  the  primary  fault,  and  self-operating,  which 
produced  the  injury.  Here  lies  the  difficulty.  But  the  inquiry  must 
be  answered  in  accordance  with  common  understanding.  In  a  suc- 
cession of  dependent  events  an  interval  may  always  be  seen  by  an 
acute  mind  between  a  cause  and  its  effect,  though  it  may  be  so  im- 
perceptible as  to  be  overlooked  by  a  common  mind.  Thus,  if  a  build- 
ing be  set  on  fire  by  negligence,  and  an  adjoining  building  be  destroyed 
CHAP.CAS.TOBTS— 3 


34  LIABILITY RULES  GOVERNING  CAUSE  AND   EFFECT 

without  any  negligence  of  the  occupants  of  the  first,  no  one  would 
doubt  that  the  destruction  of  the  second  was  due  to  the  negligence 
that  caused  the  burning  of  the  first.  Yet  in  truth,  in  a  very  legitimate 
sense,  the  immediate  cause  of  the  burning  of  the  second  was  the  burn- 
ing of  the  first.  The  same  might  be  said  of  the  burning  of  the  furni- 
ture in  the  first.  Such  refinements  are  too  minute  for  rules  of  social 
conduct.  In  the  nature  of  things,  there  is  in  every  transaction  a  suc- 
cession of  events,  more  or  less  dependent  upon  those  preceding,  and  it 
is  the  province  of  a  jury  to  look  at  this  succession  of  events  or  facts, 
and  ascertain  whether  they  are  naturally  and  probably  connected  with 
each  other  by  a  continuous  sequence,  or  are  dissevered  by  new  and 
independent  agencies,  and  this  must  be  determined  in  view  of  the  cir- 
cumstances existing  at  the  time. 

If  we  are  not  mistaken  in  these  opinions,  the  Circuit  Court  was  cor- 
rect in  refusing  to  affirm  the  defendants'  proposition,  and  in  submit- 
ting to  the  jury  to  find  whether  the  burning  of  the  mill  and  lumber  was 
a  result  naturally  and  reasonably  to  be  expected  from  the  burning  of 
the  elevator,  under  the  circumstances,  and  whether  it  was  the  result  of 
the  continued  influence  or  effect  of  the  sparks  from  the  boat,  without 
the  aid  or  concurrence  of  other  causes  not  reasonably  to  have  been 
expected.  The  jury  found,  in  substance,  that  the  burning  of  the  mill 
and  lumber  was  caused  by  the  negligent  burning  of  the  elevator,  and 
that  it  was  the  unavoidable  consequence  of  that  burning.  This,  in 
effect,  was  finding  that  there  was  no  intervening  and  independent 
cause  between  the  negligent  conduct  of  the  defendants  and  the  injury 
to  the  plaintiff.  The  judgment  must,  therefore,  be  affirmed.  Judg- 
ment affirmed. 


INTERVENTION  OF  NATURAL  FORCE  35 


II.  Intervention  of  Natural  Force* 
BISHOP  v.  ST.  PAUL  CITY  RY.  CO. 

(Supreme  Court  of  Minnesota,  1892.    48  Minn.  26,  50  N.  W.  927.) 

DICKINSON,  J.4  *  *  *  The  case  presents  the  question  as  to 
whether  the  plaintiff's  grave  infirmities,  which  became  manifest  some 
time  after  the  accident,  were  a  result  of  the  accident.  The  plaintiff  was 
standing  in  the  rear  car  or  coach,  supporting  himself  by  holding  on 
straps  suspending  from  the  upper  part  of  the  car  for  that  purpose. 
When  the  car  was  thrown  on  its  side,  as  it  reached  the  curve  in  its  rapid 
descent,  he  was  thrown  down,  the  impulse  being  such  as  to  break 
his  hold  on  the  supporting  straps.  He  immediately  became  uncon- 
scious, but  regained  consciousness  in  a  few  moments,  and  did  not  then 
seem  to  have  been  very  seriously  injured.  On  the  right  side  of  his 
head,  above  the  ear,  were  a  few  cuts,  apparently  not  very  harmful,  and 
a  small  contusion,  the  marks  of  which  disappeared  within  a  few  days. 
He  went  about  his  business  the  same  day,  and  continued  to  do  so  there- 
after for  a  considerable  period  of  time.  But  while,  according  to  the 
proof,  he  had  always  before  the  accident  been  in  good  health,  and  had 
never  suffered  the  ills  or  exhibited  the  symptoms  which  followed  it,  the 
evidence  goes  to  show  that  from  that  time  on  a  marked  change  became 
manifest  in  his  physical  and  mental  condition.  He  became  nervous  and 
irritable ;  was  troubled  with  inability  to  sleep ;  suffered  a  dull,  heavy 
pain  in  the  back  of  the  head,  extending  sometimes  further  down  the 
back.  There  was  a  feeling  of  pressure  within  the  head,  as  though  it 
would  burst.  When  sleeping,  the  scene  of  the  accident  was  repeatedly 
pictured  to  his  mind  in  dreams.  His  mental  functions  were  affected, 
his  mind  being  "muddled"  as  he  expresses  it.  These  conditions  did 
not  pass  away,  but  became  more  aggravated,  and  on  the  5th  of  Sep- 
tember, some  seven  months  after  the  accident,  without  other  apparent 
cause  than  the  circumstances  here  referred  to,  paralysis  supervened, 
involving  the  whole  left  side.  The  paralytic  condition  still  continues, 
and,  according  to  the  opinions  of  competent  expert  witnesses,  will  al- 
ways exist.  The  plaintiff  was  50  years  of  age.  While  upon  this  ap- 
peal the  facts  must,  without  doubt,  be  taken  to  be  as  above  indicated, 
the  question  was  closely  contested  as  to  whether  the  paralysis,  caused 
immediately  by  the  rupture  of  a  blood  vessel  in  the  brain,  is  a  result 
of  the  accident  and  the  shock  and  injury  then  received.  A  careful  ex- 
amination of  the  voluminous  evidence  bearing  upon  this  point  shows 
that  the  verdict  in  favor  of  the  plaintiff  is  certainly  justified.  The 

8  For  discussion  of  principles,  see  Chapin  on  Torts,  §  27. 
<  A  portion  of-  the  opinion  is  omitted. 


36  LIABILITY — RULES  GOVERNING  CAUSE  AND  EFFECT 

proof  was  chiefly  the  testimony  of  numerous  competent  medical  ex- 
perts. The  examination  of  these  witnesses  on  both  sides  was  conducted 
with  marked  intelligence,  skill,  and  thoroughness;  and  while  these 
witnesses,  whose  competency  to  testify  on  the  subject  is  beyond  ques- 
tion, do  not  agree  in  their  opinions,  it  seems  apparent  that  the  jury 
were  as  well  informed  as  they  could  be,  from  the  nature  of  the  case, 
to  form  a  correct  conclusion.  It  is  needless  to  here  enter  into  any  ex- 
tended statement  of  the  pathology  of  the  case,  as  given  by  these  wit- 
nesses, or  to  contrast  the  views  and  reasons  given  for  their  opinions. 
There  is  little  or  no  controversy  over  the  fact  that  the  rupture  of  the 
blood  vessel  causing  the  paralysis  is  to  be  ascribed  to  a  degeneration 
or  impaired  condition  of  the  blood  vessel,  the  process  of  which  degen^ 
eration  might  have  extended  over  a  considerable  period  of  time  before 
the  occurrence  of  the  rupture.  But  whether  such  degeneration  or  im- 
pairment of  health  of  the  blood  vessels  was  or  could  have  been  caused 
by  the  accident  and  injury  then  received  the  experts  disagree.  Upon 
this  point  we  will  only  say  that  the  opinion  of  several  competent  wit- 
nesses is  that  it  was  so  caused,  and  it  may  be  added  that  one  of  the 
explanations  given  for  such  an  opinion  is  that  the  physical  concussion 
(which  produced  temporary  unconsciousness)  and  the  mental  shock  af- 
fected and  impaired  the  nutrition  of  the  nerve  cells  of  the  brain  which 
preside  over  and  control  the  circulation  of  blood  in  that  organ,  so  that 
the  blood  vessels  became  distended  from  an  excessive  flow  of  blood, 
and  gradually  degenerated,  and  became  weakened,  until  they  were  in- 
capable of  resisting  the  pressure.  In  support  of  the  opinions  of  ex- 
perts in  favor  of  the  plaintiff's  side  of  this  issue  are  to  be  considered 
also  the  facts,  which  the  evidence  tended  to  show,  of  the  health  of  the 
plaintiff  up  to  the  time  of  the  accident ;  that  the  ills  which  he  suffered 
from  that  time  on  indicated  an  excess  or  unnatural  pressure  of  blood 
in  the  brain;  and  that  an  examination  of  the  plaintiff  disclosed  no 
disease  or  functional  derangement  of  other  organs  to  which  the  pa- 
ralysis might  be  attributed.  *  *  * 

The  instruction  referred  to  in  the  ninth  assignment  of  error  was 
not,  as  applied  to  the  case  before  the  jury,  erroneous.  The  injury  re- 
ceived at  the  time  of  the  accident  was  the  proximate  cause  of  the  pa- 
ralysis, if  it  caused  the  disease  in  the  course  of  which  and  asj  a  result 
of  which  the  paralysis  followed.  *  *  * 


FBIGHT  AND   MENTAL  ANGUISH  37 


III.  Fright  and  Mental  Anguish  • 


MITCHELL  v.  ROCHESTER  RY.  CO. 

(Court  of  Appeals  of  New  York,  1S96.     151  N.  Y.  107,  45  N.  E.  354,  34  L.  R  A. 
781,  56  Am.  St.  Rep.  604.) 

MARTIN,  J.  The  facts  in  this  case  are  few  and  may  be  briefly  stated. 
On  the  1st  day  of  April,  1891,  the  plaintiff  was  standing  upon  a  cross- 
walk on  Main  street  in  the  city  of  Rochester,  awaiting  an  opportunity 
to  board  one  of  the  defendant's  cars  which  had  stopped  upon  the  street 
at  that  place.  While  standing  there  and  just  as  she  was  about  to  step 
upon  the  car,  a  horse  car  of  the  defendant  came  down  the  street.  As 
the  team  attached  to  the  car  drew  near,  it  turned  to  the  right  and 
came  so  close  to  the  plaintiff  that  she  stood  between  the  horses'  heads 
when  they  were  stopped. 

She  testified  that  from  fright  and  excitement  caused  by  the  approach 
and  proximity  of  the  team  she  became  unconscious  and  also  that  the 
result  was  a  miscarriage  and  consequent  illness.  Medical  testimony 
was  given  to  the  effect  that  the  mental  shock  which  she  then  received 
was  sufficient  to  produce  the  result. 

Assuming  that  the  evidence  tended  to  show  that  the  defendant's 
servant  was  negligent  in  the  management  of  the  car  and  horses,  and 
that  the  plaintiff  was  free  from  contributory  negligence,  the  single 
question  presented  is  whether  the  plaintiff  is  entitled  to  recover  from 
the  defendant's  negligence  which  occasioned  her  fright  and  alarm  and 
resulted  in  the  injuries  already  mentioned.  While  the  authorities  are 
not  harmonious  upon  the  question,  we  think  the  most  reliable  and  bet- 
ter considered  cases,  as  well  as  public  policy,  fully  justify  us  in  hold- 
ing that  the  plaintiff  cannot  recover  for  injuries  occasioned  by  fright, 
as  there  was  no  immediate  personal  injury.  Lehman  v.  Brooklyn  City 
R.  R.  Co.,  47  Hun,  355 ;  Victorian  Railways  Commissioners  v.  Coultas 
L.  R.,  13  Appeal  Cases,  222;  Ewing  v.  P.,  C.  &  St.  L.  Ry.  Co.,  147 
Pa.  40,  23  Atl.  340,  14  L.  R.  A.  666,  30  Am.  St.  Rep.  709.  The  learned 
counsel  for  the  respondent  in  his  brief  very  properly  stated  that  "the 
consensus  of  opinion  would  seem  to  be  that  no  recovery  can  be  had  for 
mere  fright,"  as  will  be  readily  seen  by  an  examination  of  the  follow- 
ing additional  authorities:  Haile  v.  Texas  &  Pacific  R.  Co.,  60  Fed. 
557,  9  C.  C.  A.  134,  23  L.  R.  A.  774;  Joch  v.  Dankwardt,  85  111.  331 ; 
Canning  v.  Inhabitants  of  Williamstown,  1  Cush.  (Mass.)  451 ;  West- 
era  Union  Tel.  Co.  v.  Wood,  57  Fed.  471,  6  C.  C.  A.  432,  21  L.  R.  A. 
706 ;  Renner  v.  Canfield,  36  Minn.  90,  30  N.  W.  435,  1  Am.  St.  Rep. 
654;  Allsop  v.  Allsop,  5  Hurl.  &  Nor.  (N.  S.)  534;  Johnson  v.  Wells 

6  For  discussion  of  principles,  see  Chapin  on  Torts,  §  28. 


38  LIABILITY RULES  GOVERNING  CAUSE  AND   EFFECT 

Fargo  &  Co.,  6  Nev.  224,  3  Am.  Rep.  245 ;  Wyman  v.  Leavitt,  71  Me. 
227,  36  Am.  Rep.  303. 

If  it  be  admitted  that  no  recovery  can  be  had  for  fright  occasioned 
by  the  negligence  of  another,  it  is  somewhat  difficult  to  understand  how 
a  defendant  would  be  liable  for  its  consequences.  Assuming  that  fright 
cannot  form  the  basis  of  an  action,  it  is  obvious  that  no  recovery  can 
be  had  for  injuries  resulting  therefrom.  That  the  result  may  be  nerv- 
ous disease,  blindness,  insanity,  or  even  a  miscarriage  no  way  changes 
the  principle.  These  results  merely  show  the  degree  of  fright  or  the 
extent  of  the  damages.  The  right  of  action  must  still  depend  upon  the 
question  whether  a  recovery  may  be  had  for  fright.  If  it  can,  then 
an  action  may  be  maintained,  however  slight  the  injury.  If  not,  then 
there  can  be  no  recovery,  no  matter  how  grave  or  serious  the  conse- 
quences. Therefore  the  logical  result  of  the  respondent's  concession 
would  seem  to  be,  not  only  that  no  recovery  can  be  had  for  mere  fright, 
but  also  that  none  can  be  had  for  injuries  which  are  the  direct  con- 
sequences of  it. 

If  the  right  of  recovery  in  this  class  of  cases  should  be  once  establish- 
ed, it  would  naturally  result  in  a  flood  of  litigation  in  cases  where  the 
injury  complained  of  may  be  easily  feigned  without  detection  and 
where  the  damages  must  rest  upon  mere  conjecture  or  speculation. 
The  difficulty  which  often  exists  in  cases  of  alleged  physical  injury, 
in  determining  whether  they  exist,  and  if  so,  whether  they  were  caus- 
ed by  the  negligent  act  of  the  defendant  would  not  only  be  greatly  in- 
creased, but  a  wide  field  would  be  opened  for  fictitious  or  speculative 
claims.  To  establish  such  a  doctrine  would  be  contrary  to  principles  of 
public  policy. 

Moreover,  it  cannot  be  properly  said  that  the  plaintiff's  miscarriage 
was  the  proximate  result  of  the  defendant's  negligence.  Proximate 
damages  are  such  as  are  the  ordinary  and  natural  results  of  the  neg- 
ligence charged  and  those  that  are  usual  and  may,  therefore,  be  ex- 
pected. It  is  quite  obvious  tht  the  plaintiff's  injuries  do  not  fall  with- 
in the  rule  as  to  proximate  damages.  The  injuries  to  the  plaintiff  were 
plainly  the  result  of  an  accidental  or  unusual  combination  of  circum- 
stances which  could  not  have  been  reasonably  anticipated,  and  over 
which  the  defendant  had  no  control,  and  hence  her  damages  were  too 
remote  to  justify  a  recovery  in  this  action. 

These  considerations  lead  to  the  conclusion  that  no  recovery  can  be 
had  for  injuries  sustained  by  fright  occasioned  by  the  negligence  of 
another,  where  there  is  no  immediate  personal  injury. 

The  orders  of  the  General  and  Special  Terms  should  be  reversed 
and  the  order  of  the  Trial  Term  granting  a  nonsuit  affirmed  with  costs. 

All  concur,  except  HAIGHT,  J.,  not  sitting  and  VANN,  J.,  not  voting. 
Ordered  accordingly. 


FEIGHT  AND   MENTAL   ANGUISH  39 

HICKEY  v.  WELCH. 

(St.  Louis  Court  of  Appeals,  Missouri,  1901.    91  Mo.  App.  4.) 

Plaintiff  and  her  family  occupied  as  their  home  a  house  belonging  to 
Elizabeth  Welch,  wife  of  appellant.  The  premises  adjoined  defend- 
ant's residence.  It  was  alleged  that  defendant  broke  down  the  fence, 
entered  plaintiff's  back  yard,  dug  a  ditch  and  threw  up  a  bank  of  earth 
around  the  water-closet  used  by  plaintiff's  family  to  a  height  of  five 
feet,  making  it  dangerous  and  nearly  impossible  for  plaintiff  and  her 
children  to  enter  the  closet.  While  doing  so  he  grossly  abused  plain- 
tiff and  her  husband,  applied  vituperative  and  insulting  language  and 
epithets  to  them,  pointed  a  pistol  at  plaintiff  and  threatened  to  shoot 
her  and  afterwards  menaced  her  with  a  shotgun.  Plaintiff  had  former- 
ly suffered  from  severe  neurasthenia  or  nervous  exhaustion,  but  a  few 
months  before  she  had  entirely  recovered.  The  acts  of  defendant  were 
charged  to  have  so  terrified,  shocked  and  humiliated  her  as  to  bring 
on  a  recurrence  of  the  disease  in  a  more  violent  form  greatly  impair- 
ing her  health,  causing  her  to  suffer  from  numbness  in  her  limbs,  loss 
of  memory,  inability  to  concentrate  her  thoughts,  constant  pains,  spas- 
modic jerkings  and  twitchings  of  the  muscles,  a  recurrent  vision  of 
defendant  pointing  a  gun  at  her,  dread  of  insanity  and  other  symptoms 
indicative  of  a  profoundly  disordered  system. 

Defendant  asked  an  instruction  in  the  nature  of  a  demurrer  to  the 
evidence  at  the  close  of  plaintiff's  evidence.  The  court  refused  and 
submitted  the  issue  to  the  jury.  A  verdict  was  returned  in  plaintiff's 
favor  for  $200  actual  and  $300  punitive  damages. 

GOODE,  J.6  It  is  claimed  respondent  was  not  physically  injured  by 
appellant  and  therefore  her  case  must  fail.  There  are  several  good 
answers  to  this  contention. 

Some  courts  have  gone  so  far  in  applying  the  rule  that  damages  are 
not  recoverable  for  mental  anguish  or  fright  as  to  practically  hold  that4 
no  injury,  however  serious,  to  a  person's  health  as  the  result  of  a  neg- 
ligent tort,  even  though  insanity,  epilepsy  or  some  other  fearful  disease 
ensues,  is  actionable,  if  the  tort  produced  terror,  or  anxiety ;  it  being 
assumed,  apparently  that  these  mental  phenomena,  instead  of  the 
wrongful  act,  were  the  cause  of  the  subsequent  malady.  Mere  alarm 
or  distress  of  mind,  is  not,  and  ought  not  to  be,  a  cause  of  action  in 
itself.  Trigg  v.  Railway  Co.,  74  Mo.  147,  41  Am.  Rep.  305  ;  Connell  v. 
Telegraph  Co.,  116  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172,  38  Am.  St. 
Rep.  575.  Such  emotions  shortly  pass  off  and  the  patient  is  as  well  as 
ever.  They  are  easily  feigned  and  often  arise  from  trivial  or  imag- 
inary danger,  and  to  make  them  actionable  would,  as  has  often  been 
said,  open  the  door  to  fraudulent  demands  and  encourage  litigation 
over  fanciful  and  fictitious  wrongs,  when  no  real  harm  was  done.  Be- 
sides, there  is  no  criterion  by  which  to  estimate  the  damages  for  mental 

«  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


40  LIABILITY RULES  GOVERNING  CAUSE  AND  EFFECT 

disquietude,  and  if  damages  were  allowed  therefor,  they  would  neces- 
sarily be  conjectural  and  speculative.  Pleasant  emotions  are  not  among 
the  rights  which  the  law  safeguards — property,  health,  reputation,  per- 
sonal liberty  and  security.  But  when  a  nervous  disorder,  acute  or 
chronic,  or  an  illness  such  as  reputable  physicians  recognize  as  a  gen- 
uine disease  and  can  trace  with  reasonable  certainty  to  its  true  cause, 
follows  an  unlawful  act,  no  sound  reason  can  be  given  why  the  party 
injured  should  not  be  compensated  in  damages,  although  there  was  no 
visible  hurt  at  the  time.  Why  should  the  fact  that  the  sufferer  was 
frightened  cut  him  off  from  redress.  Fright  is  itself  a  result  of  an 
agitation  or  shock  to  the  nervous  system,  and  when  this  shock  is  se- 
vere enough,  it  produces  more  than  fright,  namely  an  impairment  of 
health  in  some  form  or  other,  and  more  or  less  serious.  All  emotions 
are  due  to  minute  physical  changes  in  the  nervous  system  and  when 
the  change  resulting  from  the  shock  is  extensive,  it  sometimes  induces 
disease.  The  suffering  thus  occasioned  is  as  much  due  to  physical  in- 
jury as  that  which  results  from  an  open  wound  on  the  surface  of  the 
body.  If  human  bodies  were  composed  only  of  bones,  muscles  and 
viscera,  or  if  suffering  could  only  be  caused  by  injuring  those  parts,  the 
theory  of  this  legal  doctrine  would  be  accurate ;  but  it  is  matter  of  com- 
mon knowledge  that  a  person  may  be  physically  whole  and  uninjured, 
to  all  appearances,  and  still  be  a  great  sufferer  from  nervous  afflictions. 
A  physical  injury  is  at  the  basis  of  this  class  of  disorders  as  of  all  oth- 
ers, but  is  too  obscure  to  be  readily  observed.  False  pathology  and 
physiology  seem  to  have  led  to  applications  of  the  rule  in  question 
which  were  extremely  unjust.  The  ancient  superstition  which  found 
the  proximate  cause  of  mental  and  nervous  diseases  in  diabolical  pos- 
session was  scarcely  more  ridiculous  than  the  theory  that  when  an  ail- 
ment of  that  kind  follows  a  great  fright,  due  to  another's  tortious  act, 
the  fright  and  not  the  tort  is  the  proximate  cause  of  the  injury.  Such 
diseases,  like  all  others,  have  their  origin  in  a  physical  lesion,  not  a 
metaphysical  state.  It  was  justly  remarked  by  a  learned  jurist  in  a 
case  of  this  kind:  "As  the  relation  between  fright  and  injury  to  the 
nerves  or  brain  structure  of  the  body  is  a  matter  which  depends  en- 
tirely upon  scientific  or  medical  testimony,  it  is  impossible  for  any  court 
to  lay  down  as  a  matter  of  law  that,  if  negligence  caused  the  fright 
and  such  fright  in  its  turn  so  affected  such  structure  as  to  cause  injury 
to  health,  such  injury  cannot  be  a  consequence  which  by  ordinary  course 
of  thought  would  flow  from  the  negligence,  unless  such  injury  ac- 
companied such  negligence  in  point  of  time."  Bell  v.  Great  North- 
ern Railway,  L.  R.  26  Ir.  Exch.  Div.  428. 

It  was  said  in  Sloane  v.  Railway  Co.,  Ill  Cal.  668,  44  Pac.  320,  32 
L.  R.  A.  193 :  "It  is  a  matter  of  general  knowledge  that  an  attack  of 
sudden  fright  on  an  exposure  to  imminent  peril  has  produced  in  in- 
dividuals a  complete  change  in  their  nervous  system  and  rendered  one 
who  was  physically  strong  and  vigorous,  weak  and  timid;  such  a  re- 


FRIGHT  AND  MENTAL  ANGUISH  41 

suit  must  be  regarded  as  an  injury  to  the  body  rather  than  the  mind, 
even  though  the  mind  be  at  the  same  time  injuriously  affected." 

The  cases  which  go  to  the  length  of  holding  that  no  recovery  can 
be  had  for  suffering  following  fright  or  injury  occasioned  by  a  tort 
do  not  agree  in  the  reason  for  the  rule.  Some  put  it  on  the  ground 
that  it  would  multiply  litigation  too  much  to  make  such  injuries  ac- 
tionable; others  on  the  ground  that  the  damages  are  too  remote  and 
speculative;  and  still  others  on  the  ground  that,  because  the  agitated 
mental  state  of  the  injured  person  came  between  the  wrongful  act  and 
the  alleged  injury,  the  act  was  not  the  proximate  cause  and  such  re- 
sults could  not  have  been  expected  to  flow  from  it.  Mitchell  v.  Railway 
Co.,  151  N.  Y.  107,  45  N.  E.  354,  34  L.  R.  A.  781,  56  Am.  St.  Rep. 
604;  International  Tel.  Co.  v.  Saunders,  32  Fla.  434,  14  South.  148, 
21  L.  R.  A.  810;  Mentzler  v.  Telegraph  Co.,  93  Iowa,  752,  62  N.  W. 
1,  28  L.  R.  A.  72,  57  Am.  St.  Rep.  294.  The  case  of  Mitchell  v.  Railr 
way  Co.,  is  remarkable  in  that  a  recovery  was  denied  for  a  miscarriage, 
and  the  suffering  incident  thereto,  which  followed  a  great  fright  caus- 
ed by  the  defendant's  tort.  The  opposite  conclusion  was  reached,  on 
more  logical  grounds  we  think,  in  Oliver  v.  Town  of  La  Valle,  36  Wis. 
592 ;  Railway  Co.  v.  Hunerberg,  16  111.  App.  387. 

Regarding  the  first  of  the  above  reasons,  it  may  be  said  that  if  the 
injury  complained  of  is  one  which  falls  in  the  category  of  well-known 
diseases,  whose  symptoms  physicians  are  familiar  with,  there  is  no 
more  chance  for  imposition  than  in  the  case  of  other  injuries,  and 
hence  no  reason  to  apprehend  a  flood  of  meretricious  litigation ;  if  the 
litigation  is  meritorious  it  is  the  duty  of  courts  to  entertain  it. 

Neither  would  the  damages  be  more  conjectural  than  where  they  are 
allowed  for  prospective  injury  and  suffering;  and  damages  for  future 
injury  may  always  be  recovered  if  shown  to  be  reasonably  certain  to 
occur. 

The  answer  to  the  other  objection  is  that,  when  such  an  injury  fol- 
lows a  tort  and  is  proved  by  competent  testimony  to  have  resulted 
from  it,  the  tort  is  the  proximate  cause,  according  to  the  accepted  mean- 
ing of  the  phrase.  An  act  is  a  proximate  cause  of  an  injury  in  a  legal 
sense,  when  the  injury  was  the  natural  and  probable  consequence  of 
the  act  in  the  light  of  attending  circumstances.  Nor  is  it  necessary 
that  the  harmful  result  should  immediately  follow  the  tort,  provided 
it  is  traceable  directly  to  it  without  any  other  cause  intervening.  "The 
primary  cause  may  be  the  proximate  cause  of  a  disaster  though  it  may 
operate  through  successive  instruments,  as  an  article  at  the  end  of  a 
chain  may  be  moved  by  a  force  applied  to  the  other  end,  that  force 
being  the  proximate  cause  of  the  movement ;  or  as  in  the  oft-cited  case 
of  the  squib  thrown  into  the  market  place.  The  question  always  is, 
Was  there  an  unbroken  connection  between  the  wrongful  act  and  the 
injury,  a  continuous  operation?  Did  the  facts  constitute  a  continuous 
succession  of  events  so  linked  together  as  to  make  a  natural  whole, 
or  was  there  some  new  and  independent  cause  intervening  between 


42  LIABILITY BULBS  GOVERNING  CAUSE  AND   EFFECT 

the  wrong  and  the  injury?"  Milwaukee,  etc.,  Railway  Co.  v.  Kellogg, 
94  U.  S.  469,  24  L.  Ed.  256.  And  to  defeat  recovery  on  the  ground  of 
an  intervening  cause,  it  was  ruled :  "The  new,  independent,  intervening 
cause  must  be  one  not  produced  by  the  wrongful  act  or  omission,  but 
independent  of  it  and  adequate  to  bring  the  injurious  result.  Whether 
the  natural  connection  of  events  was  maintained  or  was  broken  by 
such  new,  independent  cause  is  generally  a  question  for  the  jury." 
Mack  v.  Railway  Co.,  52  S.  C.  323,  29  S.  E.  905,  40  L.  R.  A.  679,  68 
Am.  St.  Rep.  913.  A  plaintiff  may  obtain  damages  for  concussion  fol- 
lowing a  jar.  "Railway  spine"  is  a  frequent  ground  of  recovery.  If 
such  a  result  is  actionable  when  it  develops  later  from  a  shock,  why 
refuse  relief  when  the  shock  is  received  through  the  mind?  Through 
the  sense  of  sight  or  hearing  instead  of  touch?  In  truth,  the  courts 
which  deny  relief  for  injuries  following  fright  are  so  impressed  with 
the  injustice  of  the  rule  that  they  seize  on  any  pretext  to  allow  a  re- 
covery— even  the  most  frivolous  legal  wrong  and  however  slight  the 
immediate  harm  may  be.  City  Transfer  Co.  v.  Robinson,  12  Ky.  Law 
Rep.  555 ;  Larson  v.  Chase,  47  Minn.  307,  50  N.  W.  238,  14  L.  R.  A. 
85,  28  Am.  St.  Rep.  370;  Meagher  v.  Driscoll,  99  Mass.  281,  96  Am. 
Dec.  759. 

In  this  case  there  was  abundant  expert  testimony  to  prove  plaintiff's 
nervousness,  or  rather  specific  nervous  disease,  was  due,  with  reasonable 
certainty,  to  the  shock  she  received  from  defendant's  conduct.  That 
disease  was  unquestionably  a  physical  injury,  and  we  do  not  think 
she  ought  to  be  denied  redress  for  it  and  the  suffering  of  mind  which 
went  with  it  merely  because  she  was  paralyzed  with  terror  at  the  time 
defendant  abused  and  threatened  her.  If  she  had  had  mental  anguish 
and  nothing  more,  the  case  would  be  different.  We  think  there  is  noth- 
ing inconsistent  in  this  view  with  what  was  decided  by  our  Supreme 
Court  in  Trigg  v.  Railway  Co.  or  Connell  v.  Telegraph  Co.,  supra. 

But  nearly  all  the  cases  in  which  vthe  rule  was  applied  that  no  re- 
covery is  permissible  for  mental  anguish,  fright  or  their  sequelae  were 
where  the  tort  alleged  was  negligence.  The  decisions  usually  state 
that  if  the  act  was  willful,  malicious  or  accompanied  by  circumstances 
of  inhumanity  and  oppression,  an  action  lies  for  mental  anguish,  wheth- 
er physical  harm  was  done  or  not.  A  precedent  exactly  deciding  this 
proposition  is  not  at  hand ;  but  it  is  assumed  to  be  the  law  in  the  text- 
books and  in  most  of  the  cases  which  exonerate  the  defendant  where 
negligence  is  the  basis  of  the  action. 

In  Trigg  v.  Railway  Co.,  74  Mo.  147,  41  Am.  Rep.  305,  where  the 
plaintiff  sought  to  recover  for  anxiety  on  account  of  being  carried  by 
the  defendant  past  her  destination,  it  was  said  there  were  no  circum- 
stances of  aggravation,  "such  as  malice,  insult,  wantonness,  violence, 
oppression  or  inhumanity."  That  remark,  however,  was  made  in  con- 
nection with  the  claim  for  punitive  damages. 

So  in  Deming  v.  Railway  Co.,  80  Mo.  App.  153,  it  was  said:  "The 
general  rule  is  that  mental  anguish,  when  connected  with  bodily  injury, 


FRIGHT   AND   MENTAL   ANGUISH  43 

is  the  subject  of  damages,  but  it  must  be  so  connected  in  order  to  be 
included  in  the  estimate  of  damages,  unless  the  injury  is  accompanied 
by  circumstances  of  malice,  insult  or  inhumanity."  Many  of  these 
•cases  are  by  passengers  against  railroad  companies  for  being  carried 
past  their  destination,  as  in  the  Trigg  Case,  or  against  telegraph  com- 
panies by  persons  to  whom  messages  were  sent,  for  anxiety  caused  by 
failure  to  deliver  the  message  promptly,  such  as  Connell  v.  Telegraph 
Co.,  116  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172,  38  Am.  St.  Rep.  575. 

The  Supreme  Court  of  Massachusetts,  in  applying  the  rule,  was 
careful  to  limit  it  to  negligence  cases,  saying:  "It  is  hardly  necessary 
to  add  that  this  decision  does  not  reach  those  classes  of  action  where 
an  intention  to  cause  mental  distress  or  to  hurt  the  feelings  is  shown, 
or  is  reasonably  to  be  inferred,  as,  for  example,  in  cases  of  seduction, 
slander,  malicious  prosecution  or  arrest  and  some  others.  Nor  do  we 
include  cases  of  acts  of  gross  carelessness  or  recklessness,  showing 
utter  indifference  to  such  consequences,  when  they  must  have  been  in 
the  actor's  mind."  Spade  v.  Railway  Co.,  168  Mass.  285, 47  N.  E.  88,  38 
L.  R.  A.  512,  60  Am.  St.  Rep.  393. 

We  have  no  doubt  that  where  the  act  charged  was  willfully,  wanton- 
ly or  maliciously  done,  and  especially  where  its  obvious  purpose  was  to 
wound,  humiliate  or  oppress  another,  substantial  damages  may  be  given 
for  the  mental  suffering  it  entailed.  West  v.  Forrest,  22  Mo.  344.  As- 
suming the  testimony  for  the  plaintiff  in  the  present  case  to  be  true,  it 
is  emphatically  one  of  that  kind,  the  defendant's  behavior  having  been 
atrocious. 

Moreover,  the  evidence  tends  to  show  the  defendant's  entrance  and 
acts  on  plaintiff's  premises  constituted  a  forcible  trespass,  for  which 
she  is  entitled  to  compensation;  and  her  anguish  on  account  of  his 
violent  and  abusive  conduct  may  be  taken  into  account  in  connection 
with  the  trespass  in  aggravation  of  the  damages.  Larson  v.  Chase, 
supra;  Meagher  v.  Driscoll,  supra;  Moyer  v.  Gordon,  113  Ind.  282, 
14  N.  E.  476. 

Further,  there  was  proof  an  assault  was  committed  by  defendant 
on  plaintiff.  "An  assault  is  an  inchoate  battery.  The  wrong  is  putting 
a  person  in  present  fear  of  violence,  so  that  any  act  fitted  to  have  that 
effect  on  a  reasonable  man  is  an  assault."  Webb's  Pollock  on  Torts, 
251.  Witnesses  swore  defendant  pointed  a  pistol  at  plaintiff  and 
threatened  to  shoot  her,  and  likewise  raised  a  shotgun  in  a  menacing 
way.  Those  acts  were  an  assault.  Wharton's  Criminal  Law  (10th  Ed.) 
1606;  Beach  v.  Hancock,  27  N.  H.  223,  59  Am.  Dec.  373;  State  v. 
Dooley,  121  Mo.  591,  26  S.  W.  558.  An  action  lies  for  such  a  disturb- 
ance of  one's  peace ;  and  the  resulting  anxiety,  fright,  and  other  in- 
juries, mental  or  physical,  may  be  considered  in  estimating  the  actual, 
not  merely  the  punitive  damages,  as  they  say  in  any  case  where  a 
personal  injury  is  inflicted.  Beach  v.  Hancock,  27  N.  H.  223,  59  Am. 
Dec.  373 ;  Barbee  v.  Reese,  60  Miss.  906 ;  Canning  v.  Williamstown, 
55  Mass.  (1  Gush.)  451;  Smith  v.  Railway  Co.,  23  Ohio  St.  10;  City 


44  LIABILITY RULES  GOVERNING  CAUSE  AND  EFFECT 

Transfer  Co.  v.  Robinson,  12  Ky.  Law  Rep.  555 ;  Hewlett  v.  George, 
68  Miss.  703,  9  South.  885,  13  L.  R.  A.  682 ;  Shepard  v.  Railway  Co., 
77  Iowa,  54,  41  N.  W.  564 ;  Curtis  v.  Railway  Co.,  87  Iowa,  622,  54 
N.  W.  339 ;  Railway  Co.  v.  Flagg,  43  111.  364.  *  *  * 

The  foregoing  considerations  lead  to  an  affirmance  of  the  judgment, 
in  which  all  concur. 


IV.  Intervention  of  Voluntary  Act T 
ALEXANDER  v.  TOWN  OF  NEW  CASTLE. 

(Supreme  Court  of  Indiana,  1888.    115  Ind.  51,  17  N.  E.  200.) 

This  action  was  brought  by  Alexander  to  recover  for  personal  in- 
juries sustained  by  him  through  the  alleged  negligence  of  the  defend- 
ant. The  complaint  charged  that  the  town  allowed  an  excavation  to 
be  made  in  the  side  of  one  of  the  streets,  and  negligently  suffered  this 
excavation  to  remain  open  and  uninclosed,  whereby  the  plaintiff,  with- 
out fault  on  his  part,  fell  into  this  excavation  and  was  injured.  The 
town  answered:  First,  in  denial;  secondly,  that  the  plaintiff  had  a 
warrant  for  the  arrest  of  one  Heavenridge,  and  as  special  constable 
was  taking  Heavenridge  to  jail,  under  an  order  from  a  justice  of 
the  peace,  and  in  doing  so  attempted  to  pass  the  excavation  in  ques- 
tion, that  when  opposite  the  same  Heavenridge  seized  the  plaintiff 
and  threw  him  into  the  excavation,  whereby  he  was  injured  as  charged 
in  the  complaint,  and  Heavenridge  was  enabled  to  escape. 

A  demurrer  to  this  answer,  on  the  ground  of  insufficiency  of  facts 
to  constitute  a  defense,  was  overruled. 

NIBLACK,  C.  J.  (after  stating  the  facts).8  Complaint  is  first  made 
of  the  overruling  the  demurrer  to  the  second  paragraph  of  the  answer, 
and  this  complaint  is  based  upon  the  claim  that,  as  the  pit  or  excava- 
tion so  wrongfully  and  negligently  permitted  to  remain  open  and 
uninclosed  afforded  Heavenridge  the  opportunity  of  throwing  the 
plaintiff  into  it  as  a  means  of  escape,  it  was,  in  legal  contemplation, 
the  proximate  cause  of  the  injuries  which  the  plaintiff  received. 

However  negligent  a  person,  or  a  corporation,  may  have  been  in 
some  particular  respect,  he,  or  it,  is  only  liable  to  those  who  may  have 
been  injured  by  reason  of  such  negligence,  and  the  negligence  must 
have  been  the  proximate  cause  of  the  injury  sued  for. 

Where  some  independent  agency  has  intervened  and  been  the  im- 
mediate cause  of  the  injury,  the  party  guilty  of  negligence  in  the  first 
instance  is  not  responsible.  On  that  subject  Wharton,  in  his  work  on 

T  For  discussion  of  principles,  see  Chapin  on  Torts,  §  29. 
«  Portions  of  the  opinion  are  omitted. 


INTERVENTION  OF  VOLUNTARY  ACT  45 

the  Law  of  Negligence,  at  section  134,  says:  "Supposing  that  if  it 
had  not  been  for  the  intervention  of  a  responsible  third  party  the  de- 
fendant's negligence  would  have  produced  no  damage  to  the  plaintiff, 
is  the  defendant  liable  to  the  plaintiff?  This  question  must  be  an- 
swered in  the  negative,  for  the  general  reason  that  causal  connection 
between  negligence  and  damage  is  broken  by  the  interposition  of  inde- 
pendent responsible  human  action.  I  am  negligent  on  a  particular 
subject-matter  as  to  which  I  am  not  contractually  bound.  Another 
person,  moving  independently,  comes  in,  and  either  negligently  or 
maliciously  so  acts  as  to  make  my  negligence  injurious  to  a  third  per- 
son. If  so,  the  person  so  intervening  acts  as  a  nonconductor,  and 
insulates  my  negligence,  so  that  I  cannot  be  sued  for  the  mischief 
which  the  person  so  intervening  directly  produces.  He  is  the  one  who 
is  liable  to  the  person  injured.  I  may  be  liable  to  him  for  my  neg- 
ligence in  getting  him  into  difficulty,  but  I  am  not  liable  to  others  for 
the  negligence  which  he  alone  was  the  cause  of  making  operative." 

So,  if  a  house  has  been  negligently  set  on  fire,  and  the  fire  has 
spread  beyond  its  natural  limits  by  means  of  a  new  agency,  for  ex- 
ample, if  a  high  wind  arose  after  its  ignition,  and  carried  burning 
brands  to  a  great  distance,  thus  causing  a  fire  and  a  loss  of  property 
at  a  place  which  would  have  been  safe  but  for  the  wind,  the  loss  so 
caused  by  the  wind  will  be  set  down  as  a  remote  consequence,  for 
which  the  person  setting  the  fire  should  not  be  held  responsible.  1 
Thompson,  Negligence,  144.  *  *  * 

Heavenridge  was  clearly  an  intervening,  as  well  as  an  independent, 
human  agency  in  the  infliction  of  the  injuries  of  which  the  plaintiff 
complained.  The  circuit  court,  consequently,  did  not  err  in  overruling 
the  demurrer  to  the  second  paragraph  of  the  answer.  *  *  * 

Judgment  [for  the  defendant]  affirmed. 


1.  FORESEEABLE  INTERVENTION  • 


LANE  v.  ATLANTIC  WORKS. 

(Supreme  Judicial  Court  of  Massachusetts,  1872.     Ill  Mass.  136.) 

Tort.  The  declaration  was  as  follows :  "And  the  plaintiff  says  that 
the  defendants  carelessly  left  a  truck,  loaded  with  iron,  in  Marion 
street,  a  public  highway  in  Boston,  for  the  space  of  twenty  minutes 
and  more;  and  the  iron  on  said  truck  was  so  carelessly  and  neg- 
ligently placed  that  it  would  easily  fall  off ;  and  that  the  plaintiff  was 
walking  in  said  highway,  and  was  lawfully  in  said  highway,  and  law- 
fully using  said  highway,  and  in  the  exercise  of  due  care;  and  said 

•  For  discussion  of  principles,  see  Chapin  on  Torts,  §  29. 


46  LIABILITY RULES  GOVERNING  CAUSE  AND  EFFECT 

iron  upon  said  truck  was  thrown  and  fell  therefrom  upon  the  plaintiff 
in  consequence  of  the  defendants'  carelessness,  and  the  plaintiff  was, 
severely  bruised  and  crippled,"  etc. 

The  plaintiff  introduced  evidence,10  that  the  defendants  left  a  truck 
with  a  bar  of  iron  on  it  standing  in  front  of  their  works  on  Marion: 
street,  which  was  a  public  highway  in  Boston;  that  the  iron  was  not 
fastened,  but  would  easily  roll  off  the  truck ;  that  the  plaintiff,  then: 
7  years  old,  and  a  boy  about  the  same  age  named  James  Conners, 
were  walking,  between  six  and  seven  in  the  evening  on  the  side  of" 
Marion  street  opposite  the  truck  and  the  defendants'  works ;  that  Hor- 
ace Lane,  a  boy  12  years  old,  being  near  the  truck,  called  to  them  to 
come  over  and  see  him  move  it;  that  the  plaintiff  and  Conners  said 
they  would  go  over  and  watch  him  do  it;  that  they  went  over  ac- 
cordingly; that  the  plaintiff  stood  near  the  truck  to  see  the  wheels 
move,  as  Horace  Lane  took  hold  of  the  tongue  of  the  truck ;  that 
Horace  Lane  moved  the  tongue  somewhat;  that  the  iron  rolled  off 
and  injured  the  plaintiff's  leg;  and  that  neither  the  plaintiff  nor  Con- 
ners touched  the  iron  or  truck  at  all. 

The  defendants  introduced  evidence  tending  to  show  that  the  iron 
was  fastened  securely  on  the  truck,  which  was  drawn  from  the  defend- 
ants' works  into  the  street  at  four  o'clock  in  the  afternoon;  that  the 
boys  removed  the  fastenings;  that  Horace  Lane  placed  the  boys  one 
on  each  side  of  the  truck;  that  he  turned  the  tongue  of  the  truck 
round;  that  he  and  Conners  then  took  hold  of  the  iron  and  rolled  it 
off ;  that  the  plaintiff  had  his  hands  on  the  iron  or  on  the  truck  when 
the  iron  rolled  off  on  him ;  and  that  the  boys  were  engaged  in  the 
common  enterprise  of  rolling  off  the  iron  and  moving  the  truck. 
There  was  no  evidence  that  Horace  Lane  had  any  lawful  purpose  or 
object  in  moving  the  truck,  or  any  right  to  meddle  with  it. 

The  defendants  requested  the  judge  to  give,  besides  other  rulings, 
the  following: 

"2.  In  order  to  make  the  plaintiff  a  participator  or  joint  actor  with 
Horace  Lane,  in  his  conduct  in  meddling  with  the  truck  for  an  un- 
lawful purpose,  it  was  not  necessary  for  him  to  have  actually  taken 
hold  of  the  tongue,  or  the  iron,  or  the  truck,  to  help  or  aid  in  moving 
it.  It  is  enough  if  he  joined  with  him  in  a  common  object  and  purpose 
voluntarily,  went  across  the  street  on  his  invitation  for  that  avowed 
purpose,  and  stood  by  the  truck  to  encourage  and  aid,  by  his  presence, 
word  or  act,  the  accomplishment  of  the  purpose. 

"3.  While  it  is  true  that  negligence  alone  on  the  part  of  Horace 
Lane,  which  contributed  to  the  injury  combining  with  the  defendants' 
negligence,  would  not  prevent  a  recovery,  unless  the  plaintiff's  negli- 
gei.ce  also  concurred  as  one  of  the  contributory  causes  also,  yet,  if 
the  fault  of  Horace  Lane  was  not  negligence,  but  a  voluntary  meddling 
with  the  truck  or  iron,  for  an  unlawful  purpose,  and  wholly  as  a 

10  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


INTERVENTION   OF   VOLUNTARY   ACT  47 

sheer  trespass,  and  this  culpable  conduct  was  the  direct  cause  of  the 
injury,  which  would  not  have  happened  otherwise,  the  plaintiff  can- 
not recover." 

The  judge  did  not  give  the  ruling  requested,  but  gave  rulings,  which, 
so  far  as  they  are  now  material,  were  as  follows : 

"The  city  ordinance  is  proper  to  be  put  in  evidence  and  to  be  con- 
sidered by  the  jury  upon  the  question  of  negligence,  although  it  is 
not  conclusive  proof  that  the  defendants  were  in  point  of  fact  negli- 
gent in  the  act  of  leaving  the  truck  there.  It  is  a  matter  of  evidence, 
to  be  weighed  with  all  the  other  evidence  in  the  case. 

"If  the  sole  or  the  direct  cause  of  the  accident  was  the  act  of  Horace 
Lane,  the  defendants  are  not  responsible.  If  he  was  the  culpable 
cause  of  the  accident,  that  is  to  say,  if  the  accident  resulted  from  the 
fault  of  Horace  Lane,  they  are  not  responsible.  But  if  Horace  Lane 
merely  contributed  to  the  accident,  and  if  the  accident  resulted  from 
the  joint  negligence  of  Horace  Lane  in  his  conduct  in  regard  to  mov- 
ing the  truck  and  the  negligence  of  the  defendants  in  leaving  it  there, 
where  it  was  thus  exposed,  or  leaving  it  so  insecurely  fastened  that  this 
particular  danger  might  be  reasonably  apprehended  therefrom,  then 
the  intermediate  act  of  Horace  Lane  will  not  prevent  the  plaintiff  from 
recovering,  provided  he  himself  was  in  the  exercise  of  due  and  reason- 
able care.  If  the  plaintiff  himself  participated  in  the  act  of  Horace 
Lane  no  further  than  to  go  there  and  be  a  witness  to  this  transaction 
which  Horace  Lane  proposed  to  perform,  crossing  over  the  street  by 
his  invitation,  and  witnessing  him  move  this  truck,  that  would  not 
make  him  such  a  participator  in  the  wrongful  act  of  Horace  Lane  as 
to  prevent  his  recovery,  provided  he  himself  was  in  the  exercise  of 
reasonable  care. 

"If,  however,  he  was  actually  engaged  in  the  wrongful  act  of  Hor- 
ace Lane,  if  he  was  actually  engaged  in  disturbing  this  truck,  and" mov- 
ing the  fastenings  which  had  been  put  upon  it  in  order  to  prevent  it 
from  being  disturbed,  and  was  actively  participating  in  the  act  of 
Horace  Lane,  then  he  cannot  recover.  But  if  the  act  of  the  plaintiff 
was  limited  to  crossing  the  street  for  the  purpose  of  witnessing  the 
act  done  by  Horace  Lane,  in  answer  to  his  invitation,  and  no  active 
participation  was  taken  by  the  plaintiff  other  than  that,  it  would  not 
prevent  his  recovery,  provided  he  himself  was  in  the  exercise  of  due 
and  reasonable  care." 

At  the  close  of  his  charge  to  the  jury  the  judge  read  the  second  rul- 
ing prayed  for  by  the  defendants,  and  said : 

"If  the  plaintiff  took  an  active  participation  in  it,  as  I  before  in- 
structed you,  or  went  there  as  a  joint  actor,  for  the  purpose  of  en- 
couraging Horace  Lane  in  it,  he  cannot  recover.  If  he  went  there 
attracted  by  curiosity  only,  at  the  invitation  of  the  party  who  was 
about  to  move  the  truck,  Horace  Lane,  then  he  may  recover ;  provided 
you  are  further  satisfied  that,  in  what  he  did,  he  was  in  the  exercise  of 


48  LIABILITY RULES  GOVERNING  CAUSE  AND   EFFECT 

the  due  and  reasonable  care  that  should  be  expected  of  a  person  of 
his  age." 

The  jury  returned  a  verdict  for  the  plaintiff  for  $6,000,  and  the  de- 
fendants alleged  exceptions. 

COLT,  J.  In  actions  of  this  description,  the  defendant  is  liable  for 
the  natural  and  probable  consequences  of  his  negligent  act  or  omission. 
The  injury  must  be  the  direct  result  of  the  misconduct  charged;  but 
it  will  not  be  considered  too  remote  if,  according  to  the  usual  experi- 
ence of  mankind,  the  result  ought  to  have  been  apprehended. 

The  act  of  a  third  person,  intervening  and  contributing  a  condition 
necessary  to  the  injurious  effect  of  the  original  negligence,  will  not  ex- 
cuse the  first  wrongdoer,  if  such  act  ought  to  have  been  foreseen. 
The  original  negligence  still  remains  a  culpable  and  direct  cause  of  the 
injury.  The  test  is  to  be  found  in  the  probable  injurious  consequences 
which  were  to  be  anticipated,  not  in  the  number  of  subsequent  events 
and  agencies  which  might  arise. 

Whether  in  any  given  case  the  act  charged  was  negligent,  and 
whether  the  injury  suffered  was,  within  the  relation  of  cause  and  effect, 
legally  attributable  to  it,  are  questions  for  the  jury.  They  present 
oftentimes  difficult  questions  of  fact,  requiring  practical  knowledge  and 
experience  for  their  settlement,  and  where  there  is  evidence  to  justify 
the  verdict  it  cannot  be  set  aside  as  matter  of  law.  The  only  question 
for  the  court  is,  whether  the  instructions  given  upon  these  points  stat- 
ed the  true  tests  of  liability.  *  *  * 

3.  The  last  instruction  asked  was  rightly  refused.  Under  the  law  as 
laid  down  by  the  court  the  jury  must  have  found  the  defendants  guilty 
of  negligence  in  doing  that  from  which  injury  might  reasonably  have 
been  expected,  and  from  which  injury  resulted;  that  the  plaintiff  was 
in  the  exercise  of  due  care ;  that  Horace  Lane's  act  was  not  the  sole, 
direct,  or  culpable  cause  of  the  injury;  that  he  did  not  purposely  roll 
the  iron  upon  the  plaintiff ;  and  that  the  plaintiff  was  not  a  joint  actor 
with  him  in  the  transaction,  but  only  a  spectator.  This  supports  the 
verdict.  It  is  immaterial  whether  the  act  of  Horace  Lane  was  mere 
negligence  or  a  voluntary  intermeddling.  It  was  an  act  which  the  jury 
have  found  the  defendants  ought  to  have  apprehended  and  provided 
against.  McDonald  v.  Snelling,  14  Allen,  290,  295,  92  Am.  Dec. 
768;  Powell  v.  Deveney,  3  Cush.  300,  50  Am.  Dec.  738;  Barnes  v. 
Chapin,  4  Allen,  444,  81  Am.  Dec.  710;  Tutein  v.  Hurley,  98  Mass. 
211,  93  Am.  Dec.  154;  Dixon  v.  Bell,  5  M.  &  S.  198;  Mangan  v. 
Atterton,  L.  R.  1  Ex.  239;  Illidge  v.  Goodwin,  5  C.  &  P.  190;  Bur- 
rows v.  March  Gas  Co.,  L.  R.  5  Ex.  67,  71 ;  Hughes  v.  Macfie,  2  H. 
&  C.  744. 

Exceptions  overruled. 


INTEKVENTION  OF  VOLUNTARY  ACT  49 


2.  INVOLUNTARY  INTERVENTION  xt 
ECKERT  v.  LONG  ISLAND  R.  CO. 

(Court  of  Appeals  of  New  York,  1871.    43  N.  Y.  502,  3  Am.  Rep.  721.) 

Action  in  the  City  Court  of  Brooklyn,  by  the  plaintiff  as  adminis- 
tratrix of  her  husband,  Henry  Eckert,  deceased,  to  recover  damages 
for  the  death  of  the  intestate,  caused  as  alleged  by  the  negligence  of 
the  defendant,  its  servants  and  agents,  in  the  conduct  and  running  of 
a  train  of  cars  over  its  road.  The  case,  as  made  by  the  plaintiff,  was 
that  the  deceased  received  an  injury  from  a  locomotive  engine  of  the 
defendant,  which  resulted  in  his  death,  on  the  26th  day  of  November, 
1867,  under  the  following  circumstances : 

He  was  standing  in  the  afternoon  of  the  day  named,  in  conversa- 
tion with  another  person  about  fifty  feet  from  the  defendant's  track 
in  East  New  York,  as  a  train  of  cars  was  coming  in  from  Jamaica  at 
a  rate  of  speed  estimated  by  the  plaintiff's  witnesses  of  from  twelve 
to  twenty  miles  an  hour.  The  plaintiff's  witnesses  heard  no  signal 
either,  from  the  whistle  or  the  bell  upon  the  engine.  The  engine  was 
constructed  to  run  either  way  without  turning  and  it  was  then  run- 
ning backward  with  the  cowcatcher  next  the  train  it  was  drawing, 
and  nothing  in  front  to  remove  obstacles  from  the  track.  The  claim 
of  the  plaintiff  was  that  the  evidence  authorized  the  jury  to  find  that 
the  speed  of  the  train  was  improper  and  negligent  in  that  particular 
place,  it  being  a  thickly  populated  neighborhood  and  one  of  the  sta- 
tions of  the  road. 

The  evidence  on  the  part  of  the  plaintiff  also  showed  that  a  child 
three  or  four  years  old  was  sitting  or  standing  upon  the  track  of  the 
defendant's  road  as  the  train  of  cars  approached  and  was  liable  to 
be  run  over,  if  not  removed ;  and  the  deceased,  seeing  the  danger  of 
the  child,  ran  to  it,  and,  seizing  it,  threw  it  clear  of  the  track  on  the 
side  opposite  to  that  from  which  he  came,  but,  continuing  across  the 
track  himself,  was  struck  by  the  step  or  some  part  of  the  locomotive 
or  tender,  thrown  down,  and  received  injuries  from  which  he  died 
the  same  night. 

The  evidence  on  the  part  of  the  defendant  tended  to  prove  that  the 
cars  were  being  run  at  a  very  moderate  speed,  not  over  seven  or  eight 
miles  an  hour,  that  the  signals  required  by  law  were  given,  and  that 
the  child  was  not  on  the  track  over  which  the  cars  were  passing,  but 
on  a  side  track  near  the  main  track. 

11  For  discussion  of  principles,  see  Chapin  on  Torts,  §  29. 
CHAP.CAS.TOBTS — 1 


50  LIABILITY RULES  GOVERNING  CAUSE  AND  EFFECT 

So  far  as  there  was  any  conflict  of  evidence  or  question  of  fact,  the 
questions  were  submitted  to  the  jury.  At  the  close  of  the  plaintiff's 
case,  the  counsel  for  the  defendant  moved  for  a  nonsuit  upon  the 
ground  that  it  appeared  that  the  deceased's  negligence  contributed  to 
the  injury  and  the  motion  was  denied  and  an  exception  taken.  After 
the  evidence  was  all  in,  the  judge  was  requested  by  the  counsel  for  the 
defendant  to  charge  the  jury,  in  different  forms,  that  if  the  deceased 
voluntarily  placed  himself  in  peril  from  which  he  received  the  injury, 
to  save  the  child,  whether  the  child  was  or  was  not  in  danger,  the  plain- 
tiff could  not  recover  and  all  the  requests  were  refused  and  exceptions 
taken,  and  the  question  whether  the  negligence  of  the  intestate  con- 
tributed to  the  accident  was  submitted  to  the  jury.  The  jury  found  a 
verdict  for  the  plaintiff  and  the  judgment  entered  thereon  was  af- 
firmed, on  appeal,  by  the  Supreme  Court  and  from  the  latter  judg- 
ment the  defendant  has  appealed  to  this  court. 

GROVER,  J.  The  important  question  in  this  case  arises  upon  the 
exception  taken  by  the  defendant's  counsel  to  the  denial  of  his  motion 
for  a  nonsuit,  made  upon  the  ground  that  the  negligence  of  the  plain- 
tiff's intestate  contributed  to  the  injury  that  caused  his  death.  The 
evidence  showed  that  the  train  was  approaching  in  plain  view  of  the 
deceased,  and  had  he  for  his  own  purposes  attempted  to  cross  the 
track,  or  with  a  view  to  save  property  placed  himself  voluntarily  in  a 
position  where  he  might  have  received  an  injury  from  a  collision  with 
the  train,  his  conduct  would  have  been  grossly  negligent,  and  no  re- 
covery could  have  been  had  for  such  injury.  But  the  evidence  further 
showed  that  there  was  a  small  child  upon  the  track,  who,  if  not  rescued, 
must  have  been  inevitably  crushed  by  the  rapidly  approaching  train. 
This  the  deceased  saw,  and  he  owed  a  duty  of  important  obligation 
to  this  child  to  rescue  it  from  its  extreme  peril,  if  he  could  do  so  with- 
out incurring  great  danger  to  himself.  Negligence  implies  some  act  of 
commission  or  omission  wrongful  in  itself.  Under  the  circumstances 
in  which  the  deceased  was  placed,  it  was  not  wrongful  in  him  to  make 
every  effort  in  his  power  to  rescue  the  child,  compatible  with  a  rea- 
sonable regard  for  his  own  safety.  It  was  his  duty  to  exercise  his 
judgment  as  to  whether  he  could  probably  save  the  child  without 
serious  injury  to  himself.  If,  from  the  appearances,  he  believed  that  he 
could,  it  was  not  negligence  to  make  an  attempt  so  to  do,  although  be- 
lieving that  possibly  he  might  fail  and  receive  an  injury  himself.  He 
had  no  time  for  deliberation.  He  must  act  instantly,  if  at  all,  as  a 
moment's  delay  would  have  been  fatal  to  the  child.  The  law  has  so 
high  a  regard  for  human  life  that  it  will  not  impute  negligence  to  an 
effort  to  preserve  it,  unless  made  under  such  circumstances  as  to  con- 
stitute rashness  in  the  judgment  of  prudent  persons.  For  a  person 
engaged  in  his  ordinary  affairs,  or  in  the  mere  protection  of  property, 
knowingly  and  voluntarily  to  place  himself  in  a  position  where  he  is 
liable  to  receive  a  serious  injury,  is  negligence  which  will  preclude  a 


INTERVENTION  OF  VOLUNTARY  ACT  51 

recovery  for  an  injury  so  received;  but  when  the  exposure  is  for  .the 
purpose  of  saving  life  it  is  not  wrongful,  and  therefore  not  negligent, 
unless  such  as  to  be  regarded  either  rash  or  reckless.  The  jury  were 
warranted  in  finding  the  deceased  free  from  negligence  under  the  mic- 
as above  stated.  The  motion  for  a  nonsuit  was  therefore  properly  de- 
nied. That  the  jury  were  warranted  in  finding  the  defendant  guilty  of 
negligence  in  running  the  train  in  the  manner  it  was  running  requires 
no  discussion.  None  of  the  exceptions  taken  to  the  charge  as  given,  or 
to  the  refusals  to  charge  as  requested,  affect  the  right  of  recovery. 
Upon  the  principle  above  stated,  the  judgment  appealed  from  must  be 
affirmed,  with  costs. 

CHURCH,  C.  J.,  and  PECKHAM  and  RAPALLO,  JJ.,  concur. 

ALLEN,  J.,  wrote  a  dissenting  opinion,  in  which  FoLGER,  J.,  con- 
curred. 

Judgment  affirmed. 


52  DEFENSES 

DEFENSES 
I.  Necessity  * 

SUROCCO  v.  GEARY. 
(Supreme  Court  of  California,  1853.    3  Cal.  69,  58  Am.  Dec.  385.) 

MURRAY,  Chief  Justice,2  delivered  the  opinion  of  the  court.  H£Y- 
DENFELDT,  Justice,  concurred. 

This  was  an  action,  commenced  in  the  court  below,  to  recover  dam- 
ages for  blowing  up  and  destroying  the  plaintiffs'  house  and  property, 
during  the  fire  of  the  24th  of  December,  1849. 

Geary,  at  that  time  Alcalde  of  San  Francisco,  justified,  on  the 
ground  that  he  had  authority,  by  virtue  of  his  office,  to  destroy  said 
building,  and  also  that  it  had  been  blown  up  by  him  to  stop  the  prog- 
ress of  the  conflagration  then  raging. 

It  was  in  proof  that  the  fire  passed  over  and  burned  beyond  the 
building  of  the  plaintiffs,  and  that  at  the  time  said  building  was  de- 
stroyed they  were  engaged  in  removing  their  property,  and  could,  had 
they  not  been  prevented,  have  succeeded  in  removing  more,  if  not  all 
of  their  goods. 

The  cause  was  tried  by  the  court  sitting  as  a  jury,  and  a  verdict 
rendered  for  the  plaintiffs,  from  which  the  defendant  prosecutes  this 
appeal  under  the  Practice.  Act  of  1850. 

The  only  question  for  our  consideration  is  whether  the  person  who 
tears  down  or  destroys  the  house  of  another,  in  good  faith,  and  under 
apparent  necessity,  during  the  time  of  a  conflagration,  for  the  purpose 
of  saving  the  buildings  adjacent,  and  stopping  its  progress,  can  be  held 
personally  liable  in  an  action  by  the  owner  of  the  property  destroyed. 

This  point  has  been  so  well  settled  in  the  courts  of  New  York  and 
New  Jersey  that  a  reference  to  those  authorities  is  all  that  is  necessary 
to  determine  the  present  case. 

The  right  to  destroy  property,  to  prevent  the  spread  of  a  conflagra- 
tion, has  been  traced  to  the  highest  law  of  necessity,  and  the  natural 
rights  of  man,  independent  of  society  or  civil  government.  "It  is  re- 
ferred by  moralists  and  jurists  to  the  same  great  principle  which  jus- 
tifies the  exclusive  appropriation  of  a  plank  in  a  shipwreck,  though 
the  life  of  another  be  sacrificed;  with  the  throwing  overboard  goods  in 
a  tempest,  for  the  safety  of  a  vessel;  with  the  trespassing  upon  the 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §  36. 

2  The  statement  of  facts  is  omitted. 


NECESSITY  53 

lands  of  another,  to  escape  death  by  an  enemy.  It  rests  upon  the 
maxim,  Necessitas  inducit  privilegium  quod  jura  privata." 

The  common  law  adopts  the  principles  of  the  natural  law,  and  places 
the  justification  of  an  act  otherwise  tortious  precisely  on  the  same 
ground  of  necessity.  See  American  Print  Works  v.  Lawrence,  21  N. 
J.  Law,  248,  and  the  cases  there  cited. 

This  principle  has  been  familiarly  recognized  by  the  books  from  the 
time  of  the  Saltpetre  Case,  and  the  instances  of  tearing  down  houses 
to  prevent  a  conflagration,  or  to  raise  bulwarks  for  the  defence  of  a 
city,  are  made  use  of  as  illustrations,  rather  than  as  abstract  cases,  in 
which  its  exercise  is  permitted.  At  such  times  the  individual  rights  of 
property  give  way  to  the  higher  laws  of  impending  necessity. 

A  house  on  fire,  or  those  in  its  immediate  vicinity,  which  serve  to 
communicate  the  flames,  becomes  a  nuisance,  which  it  is  lawful  to 
abate,  and  the  private  rights  of  the  individual  yield  to  the  considera- 
tions of  general  convenience,  and  the  interests  of  society.  Were  it 
otherwise,  one  stubborn  person  might  involve  a  whole  city  in  ruin  by 
refusing  to  allow  the  destruction  of  a  building  which  would  cut  off  the 
flames  and  check  the  progress  of  the  fire,  and  that,  too,  when  it  was 
perfectly  evident  that  his  building  must  be  consumed. 

The  respondent  has  invoked  the  aid  of  the  constitutional  provision 
which  prohibits  the  taking  of  private  property  for  public  use,  without 
just  compensation  being  made  therefor.  This  is  not  "a  taking  of  pri- 
vate property  for- public  use,"  within  the  meaning  of  the  Constitution. 

The  right  of  taking  individual  property  for  public  purposes  belongs 
to  the  state,  by  virtue  of  her  right  of  eminent  domain,  and  is  said  to 
be  justified  on  the  ground  of  state  necessity;  but  this  is  not  a  taking 
or  a  destruction  for  a  public  purpose,  but  a  destruction  for  the  bene- 
fit of  the  individual  or  the  city,  but  not  properly  of  the  state. 

The  counsel  for  the  respondent  has  asked,  Who  is  to  judge  of  the 
necessity  of  the  destruction  of  property? 

This  must,  in  some  instances,  be  a  difficult  matter  to  determine. 
The  necessity  of  blowing  up  a  house  may  not  exist,  or  be  as  apparent 
to  the  owner,  whose  judgment  is  clouded  by  interest,  and  the  hope  of 
saving  his  property,  as  to  others.  In  all  such  cases  the  conduct  of  the 
individual  must  be  regulated  by  his  own  judgment  as  to  the  exigen- 
cies of  the  case.  If  a  building  should  be  torn  down  without  apparent 
or  actual  necessity,  the  parties  concerned  would  undoubtedly  be  lia- 
ble in  an  action  of  trespass.  But  in  every  case  the  necessity  must  be 
clearly  shown.  It  is  true  many  cases  of  hardship  may  grow  out  of 
this  rule,  and  property  may  often  in  such  cases  be  destroyed,  without 
necessity,  by  irresponsible  persons;  but  this  difficulty  would  not  be 
obviated  by  making  the  parties  responsible  in  every  case,  whether  the 
necessity  existed  or  not. 

The  Legislature  of  the  state  possesses  the  power  to  regulate  this 
subject  by  providing  the  manner  in  which  buildings  may  be  destroyed 


54  DEFENSES 

and  the  mode  in  which  compensation  shall  be  made;  and  it  is  to  be 
hoped  that  something  will  be  done  to  obviate  the  difficulty,  and  prevent 
the  happening  of  such  events  as  those  supposed  by  the  respondent's 
counsel. 

In  the  absence  of  any  legislation  on  the  subject,  we  are  compelled  to 
fall  back  upon  the  rules  of  the  common  law. 

The  evidence  in  this  case  clearly  establishes  the  fact  that  the  blow- 
ing up  of  the  house  was  necessary,  as  it  would  have  been  consumed 
had  it  been  left  standing.  The  plaintiffs  cannot  recover  for  the  value 
of  the  goods  which  they  might  have  saved;  they  were  as  much  subject 
to  the  necessities  of  the  occasion  as  the  house  in  which  they  were  sit- 
uate; and  if  in  such  cases  a  party  was  held  liable,  it  would  too  fre- 
quently happen  that  the  delay  caused  by  the  removal  of  the  goods 
would  render  the  destruction  of  the  house  useless. 

The  court  below  clearly  erred  as  to  the  law  applicable  to  the  facts 
of  this  case.  The  testimony  will  not  warrant  a  verdict  against  the  de- 
fendant. 

Judgment  reversed. 


PROCTOR  v.  ADAMS. 

(Supreme  Judicial  Court  of  Massachusetts,  1873.    113  Mass.  376,  18  Am. 

Rep.  500.) 

Tort,  in  the  nature  of  a  trespass  quare  clausum,  for  entering  the 
plaintiff's  close  and  carrying  away  a  boat.  At  the  trial  it  appeared 
that  the  premises  described  in  the  declaration  were  a  sandy  beach  on 
the  sea  side  of  Plum  Island,  and  that  the  defendants  went  there,  be- 
tween high  and  low  water  mark,  January  19,  1873,  and  against  the 
objection  and  remonstrances  of  the  plaintiff's  tenant,  carried  away 
a  boat  worth  $50,  which  they  found  lying  there.  The  defendants 
offered  evidence  that  upon  the  night  of  January  18,  1873,  there  was  a 
severe  storm ;  that  the  next  morning  they  went  upon  the  beach  to  see 
if  any  vessels  or  property  had  been  cast  ashore ;  that  they  found  a  boat 
lying  upon  the  beach  twenty-five  feet  below  high  water  mark,  which 
had  apparently  been  driven  ashore  in  the  storm ;  that  in  order  to 
save  it,  they  endeavored  to  haul  it  upon  the  beach,  and  succeeded  in 
putting  it  near  the  line  of  high  water  mark ;  that,  not  thinking  it  secure, 
they,  the  next  day,  pushed  it  into  the  water,  and  carried  it  around 
into  Plum  Island  river,  on  the  inside  of  the  island;  that  they  at  once 
advertised  it  in  the  Ipswich  and  Newburyport  papers ;  that  they  shortly 
afterwards  delivered  it  to  one  Jackman,  who  claimed  it  as  agent  for  the 
underwriters  of  the  wrecked  steamer  Sir  Francis,  and  who  paid  them 
$12  for  their  services  and  expenses. 

The  court  ruled  that  these  facts,  if  proved,  would  not  constitute 
a  defence,  and  proposed  to  instruct  the  jury  as  follows : 


NECESSITY  55 

"If  the  land  upon  which  the  boat  was  found  and  taken  possession 
of  by  the  defendants  was  in  possession  or  occupation  of  the  plain- 
tiff, the  defendants'  entry  upon  it  without  permission  of  the  plaintiff 
was  an  unlawful  entry. 

"If  the  defendants,  having  made  an  unlawful  entry  upon  the  plain- 
tiff's land,  there  took  and  therefrom  carried  a  boat,  for  any  purpose 
affecting  the  boat  as  derelict  or  wrecked  property,  they  are  liable  to 
the  plaintiff  for  their  unlawful  entry  upon  the  land  in  nominal  dam- 
age, and  also,  the  boat  not  being  their  property,  but  a  wreck,  in  damages 
for  the  unlawful  taking  and  carrying  away  of  the  boat,  to  the  value 
of  the  boat." 

The  defendants  requested  the  court  to  rule  that,  upon  the  case  pre- 
sented, the  law  would  imply  a  license,  but  the  court  declined  so  to 
rule.  The  defendants  then  declined  to  go  to  the  jury,  and  the  court 
instructed  the  jury  to  return  a  verdict  for  the  plaintiff  for  $51,  and 
reported  the  case  to  this  court. 

GRAY,  C.  J.  The  boat,  having  been  cast  ashore  by  the  sea,  was  a 
wreck,  in  the  strictest  legal  sense.  /  $  Bl.  Com.  106;  Chase  v.  Corcoran, 
106  Mass.  286,  288.  Neither  the  finders  of  the  boat,  nor  the  owner  of 
the  beach,  nor  the  commonwealth,  had  any  title  to  the  boat  as  against 
its  former  owner.  Body  of  Liberties,  art.  90;  Anc.  Chart.  211;  2 
Mass.  Col.  Rec.  143;  St.  1814-15,  c.  169;  Rev.  St.  1836,  c.  57;  Gen. 
St.  1860,  c.  81 ;  3  Dane,  Ab.  134,  136,  138,  144;  2  Kent,  Com.  322,  359. 
But  the  owner  of  the  land  on  which  the  boat  was  cast  was  under  no 
duty  to  save  it  for  him.  Sutton  v.  Buck,  2  Taunt.  302,  312. 

If  the  boat,  being  upon  land  between  high  and  low  water  mark, 
owned  or  occupied  by  the  plaintiff,  was  taken  by  the  defendants,  claim- 
ing it  as  their  own,  when  it  was  not,  the  plaintiff  had  a  sufficient  right 
of  possession  to  maintain  an  action  against  them.  Barker  v.  Bates, 
13  Pick.  255,  23  Am.  Dec.  678;  Dunwick  v.  Sterry,  1  B.  &  Ad.  831. 
But  if,  as  the  evidence  offered  by  them  tended  to  show,  the  boat  was 
in  danger  of  being  carried  off  by  the  sea,  and  they,  before  the  plain- 
tiff had  taken  possession  of  it,  removed  it  for  the  purpose  of  saving 
it  and  restoring  it  to  its  lawful  owner,  they  were- not  trespassers. 
In  such  a  case,  though  they  had  no  permission  from  the  plaintiff  or 
any  other  person,  they  had  an  implied  license  by  law  to  enter  on  the 
beach  to  save  the  property.  It  is  a  very  ancient  rule  of  common  law 
that  an  entry  upon  land  to  save  goods  which  are  in  jeopardy  of  being 
lost  or  destroyed  by  water,  fire,  or  any  like  danger,  is  not  a  trespass. 
21  H.  VII,  27,  28,  pi.  5;  Bro.  Ab.  Trespass,  213;  Vin.  Ab.  Trespass 
(H.  a.  4)  pi.  24  ad  fin. ;  (K.  a.)  pi.  3.  In  Dunwick  v.  Sterry,  1  B.  & 
Ad.  831,  a  case  very  like  this,  Mr.  Justice  Parke  (afterwards  Baron 
Parke  and  Lord  Wensleydale)  left  it  to  the  jury  to  say  whether  the 
defendant  took  the  property  for  the  benefit  of  the  owners,  or  under 
a  claim  of  his  own  and  to  put  the  plaintiffs  to  proof  of  their  title.  In 
Barker  v.  Bates,  13  Pick.  255,  23  Am.  Dec.  678,  upon  which  the  plain- 


56  DEFENSES 

tiff  mainly  relies,  the  only  right  claimed  by  the  defendants  was  as  finders 
of  the  property  and  for  their  own  benefit. 

The  defendants  are  therefore  entitled  to  a  new  trial.  As  the  an- 
swer was  not  objected  to,  and  the  declaration  may  be  amended  in  the 
court  below,  we  have  not  considered  the  form  of  the  pleadings. 

New  trial  ordered. 


II.  Acts  of  State  » 
BURON  v.  DENMAN. 

(Court  of  Exchequer,  1848.    2  Exch.  167.) 

The  defendant,  a  naval  commander,  stationed  off  the  coast  of  Africa, 
with  instructions  to  suppress  the  slave  trade,  fired  the  barracoons  of 
plaintiff,  a  Spaniard,  and  liberated  the  slaves.  These  proceedings  were 
reported  to  the  Lords  of  the  Admiralty  and  to  the  Foreign  and  Colonial 
Secretaries  of  State,  and  were  adopted  and  ratified  by  them. 

PARKE,  B.4  (in  summing  up).  *  *  *  The  principal  question  is 
whether  the  conduct  of  the  defendant,  in  carrying  away  the  slaves, 
and  committing  the  other  alleged  trespasses,  can  be  justified  as  an  act 
of  state,  done  by  authority  of  the  Crown.  It  is  not  contended  that 
there  was  any  previous  authority.  If  the  defendant  had  merely  instruc- 
tions according  to  the  terms  of  the  treaty  set  out  in  the  act  of  Par- 
liament, those  instructions  would  only  have  extended  to  the  stopping  of 
ships  in  the  high  seas,  within  the  limits  agreed  to  by  the  treaty  with 
the  Spanish  crown.  Therefore  the  justification  of  the  defendant  de- 
pends upon  the  subsequent  ratification  of  his  acts.  A  well-known 
maxim  of  the  law  between  private  individuals  is,  "Omnis  ratihabitio 
retrotrahitur  et  mandato  sequiparatur."  If,  for  instance,  a  bailiff  dis- 
trains goods,  he  may  justify  the  act  either  by  a  previous  or  subsequent 
authority  from  the  landlord;  for,  if  an  act  be  done  by  a  person  as 
agent,  it  is  in  general  immaterial  whether  the  authority  be  given  prior 
or  subsequent  to  the  act.  If  the  bailiff  so  authorized  be  a  trespasser, 
the  person  whose  goods  are  seized  has  his  remedy  against  the  principal. 
Therefore,  generally  speaking,  between  subject  and  subject,  a  subse- 
quent ratification  of  an  act  done  as  agent  is  equal  to  a  prior  authority. 
That,  however,  is  not  universally  true.  In  the  case  of  a  tenant  from 
year  to  year,  who  has,  by  law,  a  right  to  a  half  year's  notice  to  quit,  if 
such  notice  be  given  by  an  agent,  without  the  authority  of  the  land- 
lord, the  tenant  is  not  bound  by  it.  Such  being  the  law  between  private 
individuals,  the  question  is,  whether  the  act  of  the  sovereign,  ratify- 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §  36.      • 

*  The  statement  of  facts  is  rewritten  and  a  portion  of  the  opinion  is  omitted. 


ACTS  OF  STATE  57 

ing  the  act  of  one  of  his  officers,  can  be  distinguished.  On  that  subject 
I  have  conferred  with  my  learned  brethren,  and  they  are  decidedly  of 
opinion  that  the  ratification  of  the  Crown,  communicated  as  it  has  been 
in  the  present  case,  is  equivalent  to  a  prior  command.  I  do  not  say 
that  I  dissent;  but  I  express  my  concurrence  in  their  opinion  with 
some  doubt,  because,  on  reflection,  there  appears  to  me  a  considerable 
distinction  between  the  present  case  and  the  ordinary  case  of  ratifica- 
tion by  subsequent  authority  between  private  individuals.  If  an  in- 
dividual ratifies  an  act  done  on  his  behalf,  the  nature  of  the  act  re- 
mains unchanged,  it  is  still  a  mere  trespass,  and  the  party  injured  has 
his  option  to  sue  either ;  if  the  Crown  ratifies  an  act,  the  character  of 
the  act  becomes  altered,  for  the  ratification  does  not  give  the  party 
injured  the  double  option  of  bringing  his  action  against  the  agent  who 
committed  the  trespass  or  the  principal  who  ratified  it,  but  a  remedy 
against  the  Crown  only  (such  as  it  is),  and  actually  exempts  from  all 
liability  the  person  who  commits  the  trespass.  Whether  the  remedy 
against  the  Crown  is  to  be  pursued  by  petition  of  right,  or  whether 
the  injury  is  an  act  of  state  without  remedy,  except  by  appeal  to  the 
justice  of  the  state  which  inflicts  it,  or  by  application  of  the  individual 
suffering  to  the  government  of  his  country,  to  insist  upon  compensa- 
tion from  the  government  of  this — in  either  view,  the  wrong  is  no  long- 
er actionable.  I  do  not  feel  so  strong  upon  the  point  as  to  say  that  I 
dissent  from  the  opinion  of  my  learned  brethren ;  therefore  you  have 
to  take  it  as  the  direction  of  the  court,  that  if  the  Crown,  with  knowl- 
edge of  what  has  been  done,  ratified  the  defendant's  act  by  the  Secre- 
taries of  State  or  the  Lords  of  the  Admiralty,  this  action  cannot  be 
maintained.  In  the  documents  which  have  been  read  there  is  ample 
evidence  of  ratification,  for  the  Secretary  of  State  for  Foreign  Affairs, 
the  Lords  of  the  Admiralty,  and  the  Secretary  of  State  for  the  Colonial 
Department,  on  receiving  the  report  of  the  Governor  of  Sierra  Leone, 
and  the  account  of  the  transactions  given  by  the  defendant  himself, 
expressed  their  approbation  of  what  he  had  done.  The  acts,  indeed, 
have  never  been  published,  and  that  is  one  of  the  circumstances  which 
created  a  doubt  in  my  mind.  But,  although  the  ratification  was  not 
known  before  this  action  was  commenced,  that  fact  makes  no  difference 
in  the  opinion  of  the  court.  A  previous  command  would  be  unknown, 
if  given  verbally ;  and  a  subsequent  ratification,  though  unknown,  will 
have  the  same  effect. 

It  is  argued,  on  the  part  of  the  plaintiff,  that  the  Crown  can  only 
speak  by  an  authentic  instrument  under  the  Great  Seal,  and  that, 
therefore,  the  ratification  ought  to  have  been  under  the  Great  Seal. 
We  are  clearly  of  opinion  that,  as  the  original  act  would  have  been  an 
act  of  the  Crown,  if  communicated  by  a  written  or  parol  direction 
from  the  Board  of  Admiralty,  so  this  ratification,  communicated  in  the 
way  it  has  been,  is  equally  good.  I  should  observe  that  the  court  are 
of  opinion  that  it  is  not  necessary  for  the  defendant  to  prove  the  pleas 


58  DEFENSES 

which  expressly  state  the  authority  of  the  Crown;  for  if  this  act,  by 
adoption,  becomes  the  act  of  the  Crown,  the  seizure  of  the  slaves  and 
goods  by  the  defendant  is  a  seizure  by  the  Crown,  and  an  act  of  state 
for  which  the  defendant  is  irresponsible,  and,  therefore,  entitled  to  a 
verdict  on  the  plea  of  "Not  guilty." 

The  jury  found  that  the  Crown  had  ratified  the  act  of  the  defend- 
ant, with  full  knowledge  of  what  he  had  done,  whereupon  a  verdict  was 
taken  for  him  on  the  fourth,  ninth,  and  sixteenth  pleas.  A  verdict  was 
found  for  the  plaintiff  on  the  pleas  of  not  possessed  of  the  slaves  and 
goods  and  the  plea  of  "Not  guilty,"  was  entered,  by  consent,  for  the 
plaintiff. 

F.  Robinson  tendered  a  bill  of  exceptions  to  the  above  ruling ;  but 
the  plaintiff  afterwards  obtained  an  order  to  discontinue,  certain  terms 
of  settlement  of  this  and  other  similar  actions  having  been  agreed  to. 


III.  Illegal  Conduct  of  Plaintiff5 

WELCH  v.  WESSON. 
(Supreme  Judicial  Court  of  Massachusetts,  1856.    6  Gray,  505.) 

Action  of  tort  for  running  down  the  plaintiff  on  the  highway  and 
breaking  his  sleigh. 

MERRICK,  J.  It  appears  from  the  bill  of  exceptions  to  have  been 
fully  proved  upon  the  trial  that  the  defendant  willfully  ran  down  the 
plaintiff  and  broke  his  sleigh,  as  is  alleged  in  the  declaration.  No  jus- 
tification or  legal  excuse  of  this  act  was  asserted  or  attempted  to  be 
shown  by  the  defendant ;  but  he  was  permitted,  against  the  plaintiff's 
objection,  to  introduce  evidence  tending  to  prove  that  it  was  done  while 
the  parties  were  trotting  horses  in  competition  with  each  other  for  a 
purse  of  money,  the  ownership  of  which  was  to  be  determined  by  the 
issue  of  the  race.  And  it  was  ruled  by  the  presiding  judge  that,  if  this 
fact  was  established,  no  action  could  be  maintained  by  the  plaintiff  to 
recover  compensation  for  the  damages  he  had  sustained,  even  though 
the  injury  complained  of  was  willfully  inflicted.  Under  such  instruc- 
tions, the  jury  returned  a  verdict  for  the  defendant. 

We  presume  it  may  be  assumed  as  an  undisputed  principle  of  law 
that  no  action  will  lie  to  recover  a  demand,  or  a  supposed  claim  for 
damages,  if,  to  establish  it,  the  plaintiff  requires  aid  from  an  illegal 
transaction  or  is  under  the  necessity  of  showing,  and  depending  in  any 
degree  upon  an  illegal  agreement,  to  which  he  himself  had  been  a  party. 
Gregg  v.  Wyman,  4  Cush.  322 ;  Woodman  v.  Hubbard,  25  N.  H.  67, 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  36. 


ILLEGAL   CONDUCT   OF   PLAINTIFF  59 

57  Am.  Dec.  310;  Phalen  v.  Clark,  19  Conn.  421,  50  Am.  Dec.  253; 
Simpson  v.  Bloss,  7  Taunt.  246.  But  this  principle  will  not  sustain  the 
ruling  of  the  court,  which  went  far  beyond  it,  and  laid  down  a  much 
broader  and  more  comprehensive  doctrine.  Taken  without  qualifica- 
tion, and  just  as  they  were  given  to  the  jury,  the  instructions  import 
that,  if  two  persons  are  engaged  in  the  same  unlawful  enterprise,  each 
of  them,  during  the  continuance  of  such  engagement,  is  irresponsible 
for  willful  injuries  done  to  the  property  of  the  other.  No  such  propo- 
sition as  this  can  be  true.  He  who  violates  the  law  must  suffer  its  pen- 
alties ;  but  yet  in  all  other  respects  he  is  under  its^  protection,  and  en- 
titled to  the  benefit  of  its  remedies. 

But  in  this  case  the  plaintiff  had  no  occasion  to  show,  in  order  to 
maintain  his  action,  that  he  was  engaged,  at  the  time  his  property  was 
injured,  in  any  unlawful  pursuit,  or  that  he  had  previously  made  any 
illegal  contract.  It  is  true  that,  when  he  suffered  the  injury,  he  was 
acting  in  violation  of  the  law ;  for  all  horse  trotting  upon  wagers  for 
money  is  expressly  declared  by  statute  to  be  a  misdemeanor  punish- 
able by  fine  and  imprisonment.  St.  1846,  c.  200.  But  neither  the 
contract  nor  the  race  had,  as  far  as  appears  from  the  facts  reported 
in  the  bill  of  exceptions,  or  from  the  intimations  of  the  court  in  its  rul- 
ing, anything  to  do  with  the  trespass  committed  upon  the  property 
of  the  plaintiff.  That  he  had  no  occasion  to  show  into  what  stipulations 
the  parties  had  entered,  or  what  were  the  rules  or  regulations  by  which 
they  were  to  be  governed  in  the  race,  or  whether  they  were  in  fact 
engaged  in  any  such  business  at  all,  is  apparent  from  the  course  of  the 
proceeding  at  the  trial.  The  plaintiff  introduced  evidence  tending  to 
prove  the  wrongful  acts  complained  of  in  the  writ,  and  the  damage 
done  to  his  property,  and  there  rested  his  case.  If  nothing  more  had 
been  shown,  he  would  clearly  have  been  entitled  to  recover.  He  had 
not  attempted  to  derive  assistance  either  from  an  illegal  contract  or  an 
illegal  transaction.  It  was  the  defendant,  and  not  the  plaintiff,  who 
had  occasion  to  invoke  assistance  from  proof  of  the  illegal  agreement 
and  conduct  in  which  both  parties  had  equally  participated.  From  such 
sources  neither  of  the  parties  should  have  been  permitted  to  derive 
a  benefit.  The  plaintiff  sought  nothing  of  this  kind,  and  the  mutual 
misconduct  of  the  parties  in  one  particular  cannot  exempt  the  defend- 
ant from  his  obligation  to  respond  for  the  injurious  consequences  of 
his  own  illegal  misbehavior  in  another. 

Exceptions  sustained. 


60  DEFENSES 


IV.  License*  , 

EVANS  v.  WAITE. 
(Supreme  Court  of  Wisconsin,  1892.    83  Wls.  286,  53  N.  W.  445.) 

This  is  an  action  to  recover  damages  for  personal  injuries  alleged 
to  have  been  inflicted  by  defendant  upon  plaintiff.  It  is  charged  in  the 
complaint  that:  "On  July  4,  1891,  while  the  plaintiff  was  lawfully  rid- 
ing on  horseback  on  the  public  highway  in  company  with  defendant, 
the  defendant  being  then  and  there  armed  with  a  revolver  loaded  with 
powder  and  a  leaden  ball,  negligently  and  carelessly  discharged  the 
said  revolver  so  that  the  ball  therefrom  struck  the  plaintiff  in  the  hip, 
and  passed  on  through  the  flesh  into  his  thigh  where  it  became  lodged 
and  imbedded  so  that  it  was  impracticable  to  remove  the  same,  and 
that  the  said  ball  so  fired  from  the  revolver  in  the  hands  of  the  defend- 
ant caused  a  deep,  painful  and  dangerous  wound." 

It  is  further  alleged  that  the  defendant  is  a  minor  of  about  the  age 
of  eighteen  years. 

The  defendant  answered  by  his  guardian :  (1)  A  general  denial ;  and 
(2)  that  the  plaintiff  was  guilty  of  contributory  negligence  in  that  he 
enticed  the  defendant  to  go  with  him  for  the  purpose  of  shooting,  and 
that  while  the  parties  were  shooting  the  plaintiff  was  accidentally  in- 
jured, and  not  through  any  negligence  of  the  defendant. 

On  the  trial  it  was  proved  that  the  defendant  was  a  minor ;  that  on 
the  occasion  mentioned  in  the  pleadings  he  was  armed  with  a  revolver ; 
and  that  the  plaintiff  was  wounded,  as  charged  in  the  complaint,  by 
a  bullet  discharged  from  the  revolver  by  accident,  when  in  the  hands  of 
the  defendant.  The  circuit  judge  held  that,  because  the  defendant  was 
a  minor  and  was  armed  with  a  revolver  in  violation  of  chapter  329, 
.Laws  of  1883  (S.  &  B.  Ann.  St.  §  4397b),  he  was  liable  to  the  plaintiff 
for  the  injury,  without  regard  to  the  question  of  negligence.  There- 
upon the  jury  were  instructed  to  find  for  the  plaintiff  and  to  assess 
damages  for  the  injury.  The  court  confined  the  recovery  to  compen- 
satory damages.  The  jury  assessed  plaintiff's  damages  at  $375,  nearly 
$150  of  which  was  for  actual  necessary  expenses  incurred  by  the  plain- 
tiff, and  for  loss  of  time  by  reason  of  the  injury.  A  motion  for  a  new 
trial  was  denied,  and  judgment  entered  for  the  plaintiff  pursuant  to  the 
verdict.  The  defendant  appeals  from  the  judgment. 

LYON,  C.  J.  In  Shay  v.  Thompson,  59  Wis.  540,  18  N.  W.  473,  48 
Am.  Rep.  538,  it  was  held  that  if  two  persons,  by  mutual  consent,  in 
anger  fight  together,  each  is  liable  to  the  other  for  actual  damages. 

«  For  discussion  of  -principles,  see  Chapin  on  Torts,  §  36. 


RELEASE   AND  COVENANT   NOT  TO   SUB  61 

The  fighting  being  unlawful,  the  consent  of  either  party  is  no  bar  to 
the  action.  The  authorities  upon  which  the  decision  is  based  are  cited 
in  the  opinion.  The  rule  of  that  case  applies  here.  It  was  unlawful 
for  the  defendant  to  be  armed  with  a  revolver  when  the  plaintiff  was 
injured,  and  hence  he  is  liable  for  any  injury  inflicted  by  him  with 
such  weapon.  It  is  immaterial  that  the  plaintiff  was  consenting  to  the 
defendant  being  so  armed  and  to  his  use  of  the  revolver.  Such  is  the 
rule  of  Shay  v.  Thompson,  59  Wis.  540,  18  N.  W.  473,  48  Am.  Rep. 
538.  The  only  effect  of  such  consent  was  to  confine  the  recovery  to 
compensatory  damages,  and  it  was  so  restricted. 

The  question  of  negligence  is  also  immaterial.  True  the  complaint 
charges  that  the  defendant  was  negligent,  but  it  also  contains  a  suffi- 
cient statement  of  a  cause  of  action  based  upon  the  fact  that  the  defend- 
ant was  unlawfully  armed  with  the  revolver  with  which  he  wounded 
the  plaintiff.  Were  there  any  defect  in  the  complaint  in  that  view  of 
the  case,  it  was  amendable,  for  the  whole  transaction  was  fully  proved 
on  the  trial  without  objection.  This  brings  the  case  within  the  rule 
which  allows  the  pleading  to  be  amended  to  correspond  with  the  proofs, 
or  permits  a  variance  between  the  pleadings  and  proofs  to  be  disre- 
garded. We  fail  to  find  any  error  disclosed  in  the  record. 

BY  THE  COURT.    The  judgment  of  the  circuit  court  is  affirmed. 


V.  Release  and  Covenant  Not  to  SueT 


GILBERT  v.  FINCH. 

(Court  of  Appeals  of  New  York,  1903.     173  N.  Y.  455,  66  N.  E.  133,  61  L.  R.  A. 
807,  93  Am.  Sjt.  Rep.  623.) 

This  action  was  brought  by  plaintiff  as  receiver  of  the  Commercial 
Alliance  Insurance  Company  against  defendants  as  directors  of  that 
company  to  recover  $10,000  and  interest.  The  evidence  at  the  trial 
tended  to  show  that  defendants,  as  directors  had  entered  into  nego- 
tiations with  ten  surviving  incorporators  of  the  Maine  &  New  Bruns- 
wick Insurance  Company  for  the  purchase  and  control  of  that  com- 
pany, which  negotiations  were  finally  consummated  on  May  3,  1893, 
by  the  president  of  the  Commercial  Alliance  Company,  who,  acting 
pursuant  to  the  directions  of  the  defendants,  paid  $35,000  from  the 
funds  of  the  company  to  the  ten  surviving  incorporators  of  the  Maine 
&  New  Brunswick  Company,  taking  an  assignment  of  all  their  rights 
in  the  latter.  After  plaintiff's  appointment  as  receiver  he  brought  an 
action  against  the  ten  surviving  incorporators  of  the  Maine  &  New 
Brunswick  Company  to  recover  back  the  $35,000.  This  was  compro- 

T  For  discussion  of  principles,  see  Chapin  on  Torts,  §  37. 


62  DEFENSES 

mised,  the  plaintiff  receiving  $25,000,  and  he  thereupon  executed  and 
delivered  to  the  surviving  incorporators  a  release  of  all  claims  and 
demands  which  provided  that  "the  execution  of  this  instrument  shall 
not  affect  any  cause  of  action  of  the  receiver  against  any  person  not 
named  herein." 

HAIGHT,  J.8  *  *  *  In  considering  the  effect  of  the  release,  we 
shall  assume  that  the  defendants  were  joint  tort-feasors  with  the 
Maine  incorporators,  and  that  the  release,  under  seal,  of  a  claim  given 
to  one  joint  tort-feasor,  operates  as  a  release  of  all.  Barrett  v.  Third 
Ave.  R.  R.  Co.,  45  N.  Y.  628,  635,  and  cases  there  cited.  This  rule 
is  founded  upon  the  theory  that  a  party  is  entitled  to  but  one  satisfac- 
tion for  the  injury  sustained  by  him.  The  claim  of  the  plaintiff,  as  we 
have  seen,  was  for  $35,000.  The  settlement  was  for  $25,000,  leaving 
$10,000  of  the  original  claim  unpaid  and  unsatisfied.  The  instru- 
ment given  to  the  Maine  incorporators  upon  the  settlement  of  the 
plaintiff's  suit  against  them  released  and  discharged  them  from  all 
further  claims  or  demands,  so  far  as  the  plaintiff  was  concerned,  but 
it  was  expressly  provided  in  the  instrument  that  it  should  not  affect 
any  cause  of  action  on  behalf  of  the  receiver  against  any  other  person. 
The  purpose  of  this  reservation  is  very  evident.  The  receiver,  doubt- 
less, intended  to  pursue  the  defendants  for  the  balance  of  the  claim. 
The  instrument,  therefore,  does  not  purport — neither  was  it  intended 
— to  be  a  full  and  complete  settlement  of  the  plaintiff's  entire  claim. 
Reservations  of  this  character  in  releases  are  not  uncommon,  and 
their  effect  has  been  the  subject  of  frequent  adjudication  by  the  courts. 
It  is  quite  true  that  the  courts  of  our  sister  states  have  reached  dif- 
ferent conclusions  upon  the  question,  and  that  a  sharp  conflict  exists 
in  the  courts  of  our  own  state — as,  for  instance,  Matthews  v.  Chicopee 
Mfg.  Co.,  26  N.  Y.  Super.  Ct.  712,  and  Commercial  Nat.  Bank  v.  Tay- 
lor, 64  Hun,  499,  19  N.  Y.  Supp.  533,  on  one  side,  and  Mitchell  v. 
Allen,  25  Hun,  543,  Delong  v.  Curtis,  35  Hun,  94,  and  Brogan  v.  Ha- 
nan,  55  App.  Div.  92,  66  N.  Y.  Supp.  1066,  upon  the  other  side.  In 
England  the  modern  authorities  appear  to  be  quite  uniform  upon  the 
question.  They  are  to  the  effect  that,  as  between  joint  debtors  and 
joint  tort-feasors,  a  release  given  to  one  releases  all;  but,  if  the  instru- 
ment contains  a  reservation  of  a  right  to  sue  the  other  joint  debtors 
or  tort-feasors,  it  is  not  a  release,  but,  in  effect,  is  a  covenant  not  to 
sue  the  person  released,  and  a  covenant  not  to  sue  does  not  release 
a  joint  debtor  or  a  joint  tort-feasor. 

In  the  case  of  Duck  v.  Mayeu,  [1892]  2  Q.  B.  511,  the  question  was 
as  to  whether  the  plaintiff  had  released  a  joint  tort-feasor.  He  had 
accepted  from  one  a  sum  of  money,  but  without  prejudice  to  his  claim 
against  the  other.  Smith,  L,.  J.,  in  delivering  the  opinion  of  the  court, 
said  with  reference  thereto:  "In  determining  whether  the  document 

s  The  statement  of  facts  as  contained  in  the  opinion  is  abridged  and  other 
portions  of  the  opinion  are  omitted. 


RELEASE  AND  COVENANT  NOT  TO  SUE  63 

be  a  release  or  a  covenant  not  to  sue,  the  intention  of  the  parties  was 
to  be  carried  out;  and,  if  it  were  clear  that  the  right  against  a  joint 
debtor  was  intended  to  be  preserved,  inasmuch  as  such  right  would 
not  be  preserved  if  the  document  were  held  to  be  a  release,  the  proper 
construction,  where  this  was  sought  to  be  done,  was  that  it  was  a 
covenant  not  to  sue,  and  not  a  release.  In  the  case  of  Bateson  v.  Gos- 
ling, at  nisi  prius,  the  same  canon  of  construction  was  applied,  and  it 
was  held  that  the  release  being,  as  it  was,  limited  by  a  proviso  reserv- 
ing rights  against  the  surety,  it  must  be  taken  that  it  was  a  covenant 
not  to  sue,  and  not  a  release;  and  this  ruling  was  unanimously  up- 
held by  the  court  of  common  pleas,  as  reported  in  Law  Rep.  7  C.  P. 
p.  9." 

In  Price  v.  Barker,  4  El.  &  Bl.  760,  Coleridge,  J.,  says :  "With  re- 
gard to  the  first  question,  two  modes  of  construction  are  for  consid- 
eration: One,  that,  according  to  the  earlier  authorities,  the  primary 
intention  of  releasing  the  debt  is  to  be  carried  out,  and  the  subsequent 
provision  for  reserving  remedies  against  co-obligors  and  co-contrac- 
tors should  be  rejected  as  inconsistent  with  the  intention  to  release  and 
destroy  the  debt  evinced  by  the  general  words  of  the  release,  and  as 
something  which  the  law  will  not  allow,  as  being  repugnant  to  such 
release  and  extinguishment  of  the  debt;  the  other,  that,  according  to 
the  modern  authorities,  we  are  to  mold  and  limit  the  general  words  of 
the  release  by  construing  it  to  be  a  covenant  not  to  sue,  and  thereby 
allow  the  parties  to  carry  out  the  whole  of  their  intentions  by  pre- 
serving their  rights  against  parties  jointly  liable.  We  quite  agree  with 
the  doctrine  laid  down  by  Lord  Denman  in  Nicholson  v.  Revill,  4  Adol. 
&  E.  675,  as  explained  by  Baron  Parke  in  Kearsley  v.  Cole,  16  Mees. 
&  W.  136,  that,  if  the  deed  is  taken  to  operate  as  a  release,  the  right 
against  a  party  jointly  liable  cannot  be  preserved;  and  we  think  that 
we  are  bound  by  modern  authorities  (see  Solly  v.  Forbes,  2  Brod.  &  B. 
38;  Thompson  v.  Lack,  3  C.  B.  540;  and  Payler  v.  Homersham,  4 
Maule  &  S.  423)  to  carry  out  the  whole  intention  of  the  parties  as  far 
as  possible,  by  holding  the  present  to  be  a  covenant  not  to  sue,  and  not 
a  release."  See,  also,  Currey  v.  Armitage,  6  Wkly.  Rep.  (Eng.)  516. 

In  the  case  of  McCrillis  v.  Hawes,  38  Me.  566,  one  Lewis  and  the  de- 
fendant were  charged  as  joint  trespassers  upon  the  plaintiff's  premises. 
They  had  taken  100  sticks  of  pine  timber.  The  plaintiff  settled  with 
Lewis  for  one  half  of  the  property  taken,  and  brought  action  against 
the  defendant  for  the  other  half.  It  was  held  that  th'e  action  could  be 
maintained,  and  that  the  settlement  was  not  a  release  as  to  the  whole 
claim. 

In  the  case  of  Ellis  v.  Esson,  50  Wis.  138,  6  N.  W.  518,  36  Am. 
Rep.  830,  it  was  held  that  the  instrument  given  to  one  of  several  joint 
wrongdoers  is  not  a  technical  release  if  it  appears  from  the  paper  that 
it  was  not  the  intention  of  the  injured  person  to  release  his  cause  of 
action  against  all  the  wrongdoers,  and  that  the  sum  received  was  not 


64  DEFENSES 

in  fact  a  full  compensation  for  his  injury,  nor  intended  to  be  such  by 
the  parties  to  the  agreement. 

In  Sloan  v.  Herrick,  49  Vt.  327,  it  was  held  that  the  release  of  one 
joint  tort-feasor  on  payment  of  part  satisfaction,  when  it  is  expressed 
in  the  release  that  the  sum  paid  is  received  only  in.  part  satisfaction, 
will  not  operate  to  bar  the  injured  party  from  pursuing  the  other  joint 
tort-feasor  for  so  much  of  the  tort  as  remains  unsatisfied. 

We  have  thus  called  attention  to  the  English  authorities  and  those 
of  some  of  our  sister  states.  We  have  also  referred  to  some  of  the 
conflicting  cases  in  our  own  courts.  The  question  appears  to  have 
first  received  attention  here  in  Kirby  v.  Taylor,  6  Johns.  Ch.  250,  253, 
in  which  it  was  held  that  a  release  is  to  be  construed  according  to  the 
clear  intention  of  the  parties,  and,  where  it  contains  a  reservation,  the 
other  obligee  was  not  discharged.  In  the  case  of  Irvine  v.  Millbank, 
56  N.  Y.  635,  more  fully  reported  in  15  Abb.  Prac.  (N.  S.)  378,  the 
release  was,  by  its  terms,  to  be  without  prejudice  to  the  rights  of  the 
plaintiff  as  against  the  other  defendants.  Folger,  J.,  in  delivering  the 
opinion  of  the  court,  said  that  this  instrument  was  not  a  technical  re- 
lease, which  it  must  be  to  operate  as  a  discharge  of  a  joint  tort-feasor. 
And  finally,  in  the  case  of  Whittemore  v.  Judd  Linseed  &  Sperm  Oil 
Co.,  124  N.  Y.  565,  27  N.  E.  244,  21  Am.  St.  Rep.  708,  the  question 
was  examined  by  Brown,  J.,  and  the  conclusion  reached  that,  where  a 
release  of  one  of  two  joint  debtors  contains  an  express  provision  that 
it  shall  not  affect  or  impair  the  claim  of  the  creditor  against  the  other 
debtor,  the  latter  is  not  discharged.  It  thus  appears  that  the  decisions 
of  this  court  are  in  accord  with  the  English  rule,  and  in  harmony  with 
our  statute  in  reference  to  joint  debtors.  Code  Civ.  Proc.  §§  1942, 
1944.  They  give  force  and  effect  to  the  intention  of  the  parties  to  the 
instrument,  which,  we  think,  is  more  just,  and  the  wiser  and  safer 
rule.  Where  the  release  contains  no  reservation,  it  operates  to  dis- 
charge all  the  joint  tort-f easors ;  but,  where  the  instrument  expressly 
reserves  the  right  to  pursue  the  others,  it  is  not  technically  a  release, 
but  a  covenant  not  to  sue,  and  they  are  not  discharged.  It  follows 
that  the  release,  so  called,  did  not  operate  to  discharge  the  defendants. 

The  order  of  the  appellate  division  should  be  affirmed,  and  judg- 
ment absolute  ordered  in  favor  of  the  plaintiff  upon  the  stipulation, 
with  costs. 

PARKER,  C.  J.,  and  GRAY,  BARTLETT,  GULDEN,  and  WERNER,  JJ., 
concur.  O'BRIEN,  J.,  absent. 

Order  affirmed. 


PARTIES  65 

I 

PARTIES 

I.  Public  Officers 

1.  JUDICIAL  OFFICERS  * 


BRADLEY  v.  FISHER. 

(Supreme  Court  of  the  United  States,  1871.  13  Wall.  335,  20  L.  Ed.  646.) 
FIELD,  J.2  In  1867  the  plaintiff  was  a  member  of  the  bar  of  the 
supreme  court  of  the  District  of  Columbia,  and  the  defendant  was 
one  of  the  justices  of  that  court.  In  June  of  that  year  the  trial  of  one 
John  H.  Suratt  for  the  murder  of  Abraham  Lincoln  was  commenced 
in  the  criminal  court  of  the  district,  and  was  continued  until  the  10th 
of  the  following  August,  when  the  jury  were  discharged  in  conse- 
quence of  their  inability  to  agree  upon  a  verdict.  The  defendant  held 
that  court,  presiding  at  the  trial  of  Suratt  from  its  commencement  to 
its  close,  and  the  plaintiff  was  one  of  the  attorneys  who  defended  the 
prisoner.  Immediately  upon  the  discharge  of  the  jury,  the  court,  thus 
held  by  the  defendant,  directed  an  order  to  be  entered  on  its  records 
striking  the.  name  of  the  plaintiff  from  the  roll  of  attorneys  practicing 
in  that  court.  The  order  was  accompanied  by  a  recital  that  on  the 
second  of  July  preceding,  during  the  progress  of  the  trial  of  Suratt, 
immediately  after  the  court  had  taken  a  recess  for  the  day,  as  the  pre- 
siding judge  was  descending  from  the  bench  he  had  been  accosted  in 
a  rude  and  insulting  manner  by  the  plaintiff,  charging  him  with  having 
offered  the  plaintiff  a  series  of  insults  from  the  bench  from  the  com- 
mencement of  the  trial;  that  the  judge  had  then  disclaimed  any  in- 
tention of  passing  any  insult  whatever,  and  had  assured  the  plaintiff 
that  he  entertained  for  him  no  other  feelings  than  those  of  respect; 
but  that  the  plaintiff,  so  far  from  accepting  this  explanation  or  dis- 
claimer, had  threatened  the  judge  with  personal  chastisement.  The 
plaintiff  appears  to  have  regarded  this  order  of  the  criminal  court  as 
an  order  disbarring  him  from  the  supreme  court  of  the  District;  and 
the  whole  theory  of  the  present  action  proceeds  upon  that  hypothe- 
sis. *  *  * 

The  plea,  as  will  be  seen  from  our  statement  of  it,  not  only  sets  up 
that  the  order  of  which  the  plaintiff  complains  was  an  order  of  the 
criminal  court,  but  that  it  was  made  by  the  defendant  in  the  lawful 

1  For  discussion  of  principles,  see  Chapin  on  Torta,  §  41. 

2  The  statement  of  fact,  portions  of  the  opinion  of  Justice  Field,  and  the  dis- 
senting opinion  of  Justice  Davis  (with  whom  Justice  Clifford  concurred)  are 
omitted.  , 

CHAP.  CAS.  TORTS — 5 


66  PARTIES 

exercise  and  performance  of  his  authority  and  duty  as  its  presiding 
justice.  In  other  words,  it  sets  up  that  the  order  for  the  entry  of 
which  the  suit  is  brought  was  a  judicial  act,  done  by  the  defendant  as 
the  presiding  justice  of  a  court  of  general  criminal  jurisdiction.  If 
such  were  the  character  of  the  act  and  the  jurisdiction  of  the  court,  the 
defendant  cannot  be  subjected  to  responsibility  for  it  in  a  civil  action, 
however  erroneous  the  act  may  have  been,  and  however  injurious  in 
its  consequences  it  may  have  proved  to  the  plaintiff.  For  it  is  a  general 
principle  of  the  highest  importance  to  the  proper  administration  of 
justice  that  a  judicial  officer,  in  exercising  the  authority  vested  in  him, 
shall  be  free  to  act  upon  his  own  convictions,  without  apprehension  of 
personal  consequences  to  himself.  Liability  to  answer  to  every  one 
who  might  feel  himself  aggrieved  by  the  action  of  the  judge  would  be 
inconsistent  with  the  possession  of  this  freedom,  and  would  destroy 
that  independence  without  which  no  judiciary  can  be  either  respectable 
or  useful.  As  observed  by  a  distinguished  English  judge,  it  would 
establish  the  weakness  of  judicial  authority  in  a  degrading  responsibil- 
ity. Justice  Mayne,  in  Taaffe  v.  Downes,  reported  in  a  note  to  3 
Moore's  Privy  Council,  41. 

The  principle,  therefore,  which  exempts  judges  of  courts  of  superior 
or  general  authority  from  liability  in  a  civil  action  for  acts  done  by 
them  in  the  exercise  of  their  judicial  functions,  obtains  in  all  coun- 
tries where  there  is  any  well-ordered  system  of  jurisprudence.  It  has 
been  the  settled  doctrine  of  the  English  courts  for  many  centuries, 
and  has  never  been  denied,  that  we  are  aware  of,  in  the  courts  of  this 
country.  It  has,  as  Chancellor  Kent  observes,  "a  deep  root  in  the  com- 
mon law."  Yates  v.  Lansing,  5  Johns.  (N.  Y.)  291. 

Nor  can  this  exemption  of  the  judges  from  civil  liability  be  affected 
by  the  motives  with  which  their  judicial  acts  are  performed.  The 
purity  of  their  motives  cannot  in  this  way  be  the  subject  of  judicial 
inquiry.  This  was  adjudged  in  the  Case  of  Floyd  and  Barker,  re- 
ported by  Coke,  in  1608  (12  Coke,  25),  where  it  was  laid  down  that  the 
judges  of  the  realm  could  not  be  drawn  in  question  for  any  supposed 
corruption  impeaching  the  verity  of  their  records,  except  before  the 
king  himself ;  and  it  was  observed  that,  if  they  were  required  to 
answer  otherwise,  it  would  "tend  to  the  scandal  and  subversion  of  all 
justice,  and  those  who  are  the  most  sincere  would  not  be  free  from 
continual  calumniations."  The  truth  of  this  latter  observation  is  mani- 
fest to  all  persons  having  much  experience  with  judicial  proceedings  in 
the  superior  courts.  Controversies  involving  not  merely  great  pe- 
cuniary interests,  but  the  liberty  and  character  of  the  parties,  and  con- 
sequently exciting  the  deepest  feelings,  are  being  constantly  deter- 
mined in  those  courts,  in  which  there  is  great  conflict  in  the  evidence, 
and  great  doubt  as  to  the  law  which  should  govern  their  decision.  It 
is  this  class  of  cases  which  imposes  upon  the  judge  the  severest  labor, 
and  often  creates  in  his  mind  a  painful  sense  of  responsibility.  Yet  it 


PUBLIC   OFFICERS  67 

is  precisely  in  this  class  of  cases  that  the  losing  party  feels  most 
keenly  the  decision  against  him,  and  most  readily  accepts  anything  but 
the  soundness  of  the  decision  in  explanation  of  the  action  of  the  judge. 
Just  in  proportion  to  the  strength  of  his  convictions  of  the  correctness 
of  his  own  view  of  the  case  is  he  apt  to  complain  of  the  judgment 
against  him,  and  from  complaints  of  the  judgment  to  pass  to  the 
ascription  of  improper  motives  to  the  judge.  When  the  controversy 
involves  questions  affecting  large  amounts  of  property,  or  relates  to  a 
matter  of  general  public  concern,  or  touches  the  interests  of  numerous 
parties,  the  disappointment  occasioned  by  an  adverse  decision  often 
finds  vent  in  imputations  of  this  character,  and  from  the  imperfection 
of  human  nature  this  is  hardly  a  subject  of  wonder.  If  civil  actions 
could  be  maintained  in  such  cases  against  the  judge,  because  the  losing 
party  should  see  fit  to  allege  in  his  complaint  that  the  acts  of  the  judge 
were  done  with  partiality,  or  maliciously,  or  corruptly,  the  protection 
essential  to  judicial  independence  would  be  entirely  swept  away.  Few 
persons  sufficiently  irritated  to  institute  an  action  against  a  judge  for 
his  judicial  acts  would  hesitate  to  ascribe  any  character  to  the  acts 
which  would  be  essential  to  the  maintenance  of  the  action.  If,  upon 
such  allegations,  a  judge  could  be  compelled  to  answer  in  a  civil  action 
for  his  judicial  acts,  not  only  would  his  office  be  degraded  and  his  use- 
fulness destroyed,  but  he  would  be  subjected  for  his  protection  to  the 
necessity  of  preserving  a  complete  record  of  all  the  evidence  produced 
before  him  in  every  litigated  case,  and  of  the  authorities  cited  and 
arguments  presented,  in  order  that  he  might  be  able  -to  show,  to  the 
judge  before  whom  he  might  be  summoned  by  the  losing  party, — and 
that  judge,  perhaps,  one  of  an  inferior  jurisdiction — that  he  had  de- 
cided as  he  did  with  judicial  integrity ;  and  the  second  judge  would  be 
subjected  to  a  similar  burden,  as  he,  in  his  turn,  might  also  be  held 
amenable  by  the  losing  party.  *  *  * 

In  the  present  case  we  have  looked  into  the  authorities,  and  are 
clear  from  them,  as  well  as  from  the  principle  on  which  any  exemption 
is  maintained,  that  *  *  *  judges  of  courts  of  superior  or. general 
jurisdiction  are  not  liable  to  civil  actions  for  their  judicial  acts,  even 
when  such  acts  are  in  excess  of  their  jurisdiction,  and  are  alleged  to 
have  been  done  maliciously  or  corruptly,  A  distinction  must  be  here 
observed  between  excess  of  jurisdiction  and  the  clear  absence  of  all 
jurisdiction  over  the  subject-matter.  Where  there  is  clearly  no  juris- 
diction over  the  subject-matter,  any  authority  exercised  is  a  usurped 
authority;  and  for  the  exercise  of  such  authority,  when  the  want  of 
jurisdiction  is  known  to  the  judge,  no  excuse  is  permissible.  But 
where  jurisdiction  over  the  subject-matter  is  invested  by  law  in  the 
judge,  or  in  the  court  which  he  holds,  the  manner  and  extent  in  which 
the  jurisdiction  shall  be  exercised  are  generally  as  much  questions  for 
his  determination  as  any  other  questions  involved  in  the  case,  although 
upon  the  correctness  of  his  determination  in  these  particulars  the  valid- 


68  PARTIES 

ity  of  his  judgments  may  depend.  Thus  if  a  probate  court,  invested 
only  with  authority  over  wills  and  the  settlement  of  estates  of  deceased 
persons,  should  proceed  to  try  parties  for  public  offenses,  jurisdic- 
tion over  the  subject  of  offenses  being  entirely  wanting  in  the  court, 
and  this  being  necessarily  known  to  its  judge,  his  commission  would 
afford  no  protection  to  him  in  the  exercise  of  the  usurped  authority. 
But  if,  on  the  other  hand,  a  judge  of  a  criminal  court,  invested  with 
general  criminal  jurisdiction  over  offenses  committed  within  a  certain 
district,  should  hold  a  particular  act  to  be  a  public  offense,  which  is 
not  by  the  law  made  an  offense,  and  proceed  to  the  arrest  and  trial  of  a 
party  charged  with  such  act,  or  should  sentence  a  party  convicted  to 
a  greater  punishment  than  that  authorized  by  the  law  upon  its  proper 
construction,  no  personal  liability  to  civil  action  for  such  acts  would 
attach  to  the  judge,  although  those  acts  would  be  in  excess  of  his  juris- 
diction, or  of  the  jurisdiction  of  the  court  held  by  him;  for  these  are 
particulars  for  his  judicial  consideration,  whenever  his  general  juris- 
diction over  the  subject-matter  is  invoked.  Indeed,  some  of  the  most 
difficult  and  embarrassing  questions  which  a  judicial  officer  is  called 
upon  to  consider  and  determine  relate  to  his  jurisdiction,  or  that  of 
the  court  held  by  him,  or  the  manner  in  which  the  jurisdiction  shall  be 
exercised.  And  the  same  principle  of  exemption  from  liability  which 
obtains  for  errors  committed  in  the  ordinary  prosecution  of  a  suit 
where  there  is  jurisdiction  of  both  subject  and  person  applies  in  cases 
of  this  kind,  and  for  the  same  reasons. 

The  distinction  here  made  between  acts  done  in  excess  of  jurisdic- 
tion, and  acts  where  no  jurisdiction  whatever  over  the  subject-matter 
exists,  was  taken  by  the  court  of  king's  bench  in  Ackerley  v.  Parkin- 
son, 3  Maule  &  Selwyn,  411.  In  that  case  an  action  was  brought 
against  the  vicar-general  of  the  bishop  of  Chester,  and  his  surrogate, 
who  held  the  consistorial  and  episcopal  court  of  the  bishop,  for  ex- 
communicating the  plaintiff  with  the  greater  excommunication  for  con- 
tumacy, in  not  taking  upon  himself  the  administration  of  an  intestate's 
effects,  'to  whom  the  plaintiff  was  next  of  kin ;  the  citation  issued  to 
him  being  void,  and  having  been  so  adjudged.  The  question  presented 
was  whether,  under  these  circumstances,  the  action  would  lie.  The 
citation  being  void,  the  plaintiff  had  not  been  legally  brought  before 
the  court,  and  the  subsequent  proceedings  were  set  aside,  on  appeal, 
on  that  ground.  Lord  Ellenborough  observed  that  it  was  his  opinion 
that  the  action  was  not  maintainable  if  the  ecclesiastical  court  had  a 
general  jurisdiction  over  the  subject-matter,  although  the  citation  was 
a  nullity,  and  said  that  "no  authority  had  been  cited  to  show  that  the 
judge  would  be  liable  to  an  action  where  he  has  jurisdiction,  but  has 
proceeded  erroneously,  or,  as  it  is  termed,  inverso  ordine."  Mr.  Jus- 
tice Blanc  said  there  was  "a  material  distinction  between  a  case  where 
a  party  comes  to  an  erroneous  conclusion  in  a  matter  over  which  he 
has  jurisdiction  and  a  case  where  he  acts  wholly  without  jurisdiction," 


PUBLIC   OFFICERS  69 

and  held  that  where  the  subject-matter  was  within  the  jurisdiction 
of  the  judge,  and  the  conclusion  was  erroneous,  although  the  party 
should  by  reason  of  the  error  be  entitled  to  have  the  conclusion  set 
aside,  and  to  be  restored  to  his  former  rights,  yet  he  was  not  entitled 
to  claim  compensation  in  damages  for  the  injury  done  by  such  errone- 
ous conclusion,  as  if  the  court  had  proceeded  without  any  jurisdiction. 

The  exemption  of  judges  of  the  superior  courts  of  record  from  lia- 
bility to  civil  suit  for  their  judicial  acts  existing  when  there  is  juris- 
diction of  the  subject-matter,  though  irregularity  and  error  attended 
the  exercise  of  the  jurisdiction,  the  exemption  cannot  be  affected  by 
any  consideration  of  the  motives  with  which  the  acts  are  done.  The 
allegation  of  malicious  or  corrupt  motives  could  always  be  made,  and, 
if  the  motives  could  be  inquired  into,  judges  would  be  subjected  to 
the  same  vexatious  litigation  upon  such  allegations,  whether  the  mo- 
tives had  nor  had  not  any  real  existence.  Against  the  consequences  of 
their  erroneous  or  irregular  action,  from  whatever  motives  proceed- 
ing, the  law  has  provided  for  private  parties  numerous  remedies,  and 
to  those  remedies  they  must,  in  such  cases,  resort.  But  for  malice  or 
corruption  in  their  action,  while  exercising  their  judicial  functions 
within  the  general  scope  of  their  jurisdiction,  the  judges  of  these  courts 
can  only  be  reached  by  public  prosecution  in  the  form  of  impeach- 
ment, or  in  such  other  form  as  may  be  specially  prescribed. 

If,  now,  we  apply  the  principle  thus  stated,  the  question  presented 
in  this  case  is  one  of  easy  solution.  The  criminal  court  of  the  Dis- 
trict, as  a  court  of  general  criminal  jurisdiction,  possessed  the  power 
to  strike  the  name  of  the  plaintiff  from  its  rolls  as  a  practicing  attor- 
ney. This  power  of  removal  from  the  bar  is  possessed  by  all  courts 
which  have  authority  to  admit  attorneys  to  practice.  It  is  a  power 
which  should  only  be  exercised  for  the  most  weighty  reasons,  such  as 
would  render  the  continuance  of  the  attorney  in  practice  incompatible 
with  a  proper  respect  of  the  court  for  itself,  or  a  proper  regard  for 
the  integrity  of  the  profession;  and  except  where  matters  occurring 
in  open  court,  in  presence  of  the  judges,  constitute  the  grounds  of  its 
action,  the  power  of  the  court  should  never  be  exercised  without  no- 
tice to  the  offending  party  of  the  grounds  of  complaint  against  him, 
and  affording  him  ample  opportunity  of  explanation  and  defense. 
This  is  a  rule  of  natural  justice,  and  is  as  applicable  to  cases  where  a 
proceeding  is  taken  to  reach  the  right  of  an  attorney  to  practice  his 
profession  as  it  is  when  the  proceeding  is  taken  to  reach  his  real  or 
personal  property;  and  even  where  the  matters  constituting  the 
grounds  of  complaint  have  occurred  in  open  court,  under  the  per- 
sonal observation  of  the  judges,  the  attorney  should  ordinarily  be 
heard  before  the  order  of  removal  is  made,  for  those  matters  may 
not  be  inconsistent  with  the  absence  of  improper  motives  on  his  part, 
or  may  be  susceptible  of  such  explanation  as  would  mitigate  their 
offensive  character,  or  he  may  be  ready  to  make  all  proper  reparation 


<U  PARTIES 

and  apology.  Admission  as  an  attorney  is  not  obtained  without  years 
of  labor  and  study.  The  office  which  the  party  thus  acquires  is  one 
of  value,  and  often  becomes  the  source  of  great  honor  and  emolument 
to  its  possessor.  To  most  persons  who  enter  the  profession  it  is  the 
means  of  support  to  themselves  and  their  families.  To  deprive  one  of 
an  office  of  this  character  would  often  be  to  decree  poverty  to  him- 
self, and  destitution  to  his  family.  A  removal  from  the  bar  should 
therefore  never  be  decreed  where  any  punishment  less  severe,  such 
as  reprimand,  temporary  suspension,  or  fine,  would  accomplish  the 
end  desired.  But,  on  the  other  hand,  the  obligation  which  attorneys 
impliedly  assume  if  they  do  not  by  express  declaration  take  upon  them- 
selves, when  they  are  admitted  to  the  bar,  is  not  merely  to  be  obedient 
to  the  constitution  and  laws,  but  to  maintain  at  all  times  the  respect 
due  to  courts  of  justice  and  judicial  officers.  This  obligation  is  not 
discharged  by  merely  observing  the  rules  of  courteous  demeanor  in 
open  court,  but  it  includes  abstaining  out  of  court  from  all  insulting 
language  and  offensive  conduct  towards  the  judges  personally  for 
their  judicial  acts.  "In  matters  collateral  to  official  duty,"  said  Chief 
Justice  Gibson  in  the  case  of  Austin  and  Others,  "the  judge  is  on  a 
level  with  the  members  of  the  bar  as  he  is  with  his  fellow-citizens  his 
title  to  distinction  and  respect  resting  on  no  other  foundation  than  his 
virtues  and  qualities  as  a  man.  But  it  is  nevertheless  evident  that 
professional  fidelity  may  be  violated  by  acts  which  fall  without  the 
lines  of  professional  functions,  and  which  may  have  been  performed 
out  of  the  pale  of  the  court.  Such  would  be  the  consequences  of 
beating  or  insulting  a  judge  in  the  street  for  a  judgment  in  court. 
No  one  would  pretend  that  an  attempt  to  control  the  deliberation  of 
the  bench  by  the  apprehension  of  violence,  and  subject  the  judges  to 
the  power  of  those  who  are,  or  ought  to  be,  subordinate  to  them,  is 
compatible  with  professional  duty,  or  the  judicial  independence  so  in- 
dispensable to  the  administration  of  justice.  And  an  enormity  of  the 
sort,  practiced  but  on  a  single  judge,  would  be  an  offense  as  much 
against  the  court,  which  is  bound  to  protect  all  its  members,  as  if  it 
had  been  repeated  on  the  person  of  each  of  them,  because  the  con- 
sequences to  suitors  and  the  public  would  be  the  same;  and,  whatever 
may  be  thought  in  such  a  case  of  the  power  to  punish  for  contempt, 
there  can  be  no  doubt  of  the  existence  of  a  power  to  strike  the  offend- 
ing attorney  from  the  roll." 

The  order  of  removal  complained  of  in  this  case  recites  that  the 
plaintiff  threatened  the  presiding  justice  of  the  criminal  court,  as  he 
was  descending  from  the  bench,  with  personal  chastisement  for  al- 
leged conduct  of  the  judge  during  the  progress  of  a  criminal  trial  then 
pending.  The  matters  thus  recited  are  stated  as  the  grounds  for  the 
exercise  of  the  power  possessed  by  the  court  to  strike  the  name  of 
the  plaintiff  from  the  roll  of  attorneys  practicing  therein.  It  is  not 
necessary  for  us  to  determine  in  this  case  whether,  under  any  circum- 


PUBLIC    OFFICERS  71 

stances,  the  verity  of  this  record  can  be  impeached.  It  is  sufficient  to 
observe  that  it  cannot  be  impeached  in  this  action  or  in  any  civil  ac- 
tion against  the  defendant;  and,  if  the  matters  recited  are  taken  as 
true,  there  was  ample  ground  for  the  action  of  the  court.  A  greater 
indignity  could  hardly  be  offered  to  a  judge  than  to  threaten  him  with 
personal  chastisement  for  his  conduct  on  the  trial  of  a  cause.  A  judge 
who  should  pass  over  in  silence  an  offense  of  such  gravity  would  soon 
find  himself  a  subject  of  pity,  rather  than  of  respect. 

The  criminal  court  of  the  District  erred  in  not  citing  the  plaintiff, 
before  making  the  order  striking  his  name  from  the  roll  of  its  attor- 
neys, to  show  cause  why  such  order  should  not  be  made  for  the 
offensive  language  and  conduct  stated,  and  affording  him  opportunity 
for  explanation,  or  defense,  or  apology.  But  this  erroneous  manner 
in  which  its  jurisdiction  was  exercised,  however  it  may  have  affected 
the  validity  of  the  act,  did  not  make  the  act  any  less  a  judicial  act; 
nor  did  it  render  the  defendant  liable  to  answer  in  damages  for  it 
at  the  suit  of  the  plaintiff,  as  though  the  court  had  proceeded  without 
having  any  jurisdiction  whatever  over  its  attorneys. 

We  find  no  error  in  the  rulings  of  the  court  below,  and  its  judg- 
ment must  therefore  be  affirmed,  and  it  is  so  ordered. 

Judgment  affirmed. 


RUSH  v.  BUCKLEY. 

(Supreme  Judicial  Court  of  Maine,  1905.     100  Me.  322,  61  Atl.  774,  70  L.  E.  A. 

464,  4  Ann.  Cas.  318.) 

WiswELL,  C.  J.8  The  plaintiff  had  been  arrested  upon  two  occa- 
sions, brought  before  the  Augusta  municipal  court,  tried,  convicted, 
sentenced  to  pay  a  fine  in  each  case,  and  committed  to  jail  in  default  of 
such  payment,  upon  warrants  issued  by  that  court.  The  offense  al- 
leged in  the  complaint  and  warrant  in  each  case  was  the  violation  of 
an  ordinance  of  the  city  of  Augusta  regulating  public  carriages  therein, 
and  which  prohibited  all  persons  from  driving  such  a  carriage  in  the 
city  of  Augusta  without  a  license  therefor,  under  a  penalty  therein 
provided.  In  these  two  cases,  reported  and  argued  together,  the  plain- 
tiff sues  the  judge  of  the  municipal  court  who  issued  the  warrants, 
the  officer  who  served  them,  and  the  persons  who  made  the  two  com- 
plaints for  false  imprisonment,  upon  the  ground  that  the  ordinance 
had  never  gone  into  effect,  and  was  void,  because  it  never  had  been 
published  in  some  newspaper  printed  in  Augusta,  as  required  by  the 

statute  authorizing  such  ordinances.     Rev.   St.   c.   4,   §   93,  par.  9. 
*     *     * 

We  finally  come  to  a  consideration  of  the  question  as  to  whether, 
under  the  circumstances  which  have  already  been  stated,  the  judge  of 

s  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


72  PARTIES 

the  municipal  court  is  liable  in  damages  to  the  plaintiff  for  any  of  the 
acts  done  by  him.  The  rule  is  well  established  that  judges  of  courts 
of  superior  jurisdiction  are  not  liable  to  civil  actions  for  their  judicial 
acts,  even  where  such  acts  are  in  excess  of  their  jurisdiction.  As  to 
whether  this  immunity  from  civil  liability  is  equally  applicable  to  a 
judge  of  an  inferior  court,  or  to  a  magistrate  of  limited  jurisdiction,  is 
a  question  about  which  the  authorities  are  not  in  entire  accord.  We 
favor  the  doctrine,  towards  which,  we  think,  there  is  a  strong  tendency 
in  more  recent  judicial  opinion,  that  where  a  judge  of  an  inferior  court, 
or  a  magistrate,  is  invested  by  law  with  jurisdiction  over  the  general 
subject-matter  of  an  alleged  offense — that  is,  has  the  power  to  hear 
and  determine  cases  of  the  general  class  to  which  the  proceeding  in 
question  belongs — and  decides,  although  erroneously,  that  he  has  juris- 
diction over  the  particular  offense  of  which  complaint  is  made  to  him, 
or  that  the  facts  charged  in  the  complaint  constitute  an  offense,  and 
acts  accordingly  in  entire  good  faith,  such  erroneous  decision  is  a  ju- 
dicial one,  for  which  he  should  not  be,  and  is  not,  liable  in  damages  to 
a  party  who  has  been  thereby  injured.  We  can  perceive  of  no  good 
reason  why  the  judge  of  general  local,  but  inferior,  jurisdiction  should 
not  be  as  fully  protected  against  the  consequences  of  his  erroneous 
judicial  decision  concerning  a  matter  within  the  limits  of  his  general 
jurisdiction  over  offenses  of  the  same  general  nature  as  should  judges 
of  superior  courts  for  their  judicial  mistakes. 

In  the  application  of  this  doctrine,  the  distinction  must  be  observed 
between  mere  excess  of  jurisdiction  and  the  clear  absence  of  all  juris- 
diction over  the  subject-matter.  This  distinction  was  very  clearly 
pointed  out  in  the  case  of  Bradley  v.  Fisher,  13  Wall.  335,  20  L.  Ed. 
646,  a  leading  case  upon  the  question  of  judicial  liability.  In  illustra- 
tion of  this  distinction,  the  court  in  that  case  said :  "Thus,  if  a  probate 
court,  invested  only  with  authority  over  wills  and  the  settlement  of 
estates  of  deceased  persons,  should  proceed  to  try  parties  for  public 
offenses,  jurisdiction  over  the  subject  of  offenses  being  entirely  want- 
ing in  the  court  and  this  being  necessarily  known  to  its  judge,  his  com- 
mission would  afford  no  protection  to  him  in  the  exercise  of  the  usurp- 
ed authority.  But  if,  on  the  other  hand,  a  judge  of  a  criminal  court, 
invested  with  general  criminal  jurisdiction  over  offenses  committed 
within  a  certain  district,  should  hold  a  particular  act  to  be  a  public 
offense  which  is  not  by  law  made  an  offense,  and  proceed  to  the 
arrest  and  trial  of  a  party  charged  with  such  acts,  or  should  sentence  a 
party  convicted  to  a  greater  punishment  than  that  authorized  by  the  law 
upon  its  proper  construction,  no  personal  liability  to  civil  action  for 
such  acts  would  attach  to  the  judge,  although  those  acts  would  be  in 
excess  of  his  jurisdiction,  or  of  the  jurisdiction  of  the  court  held  by 
him;  for  these  are  particulars  for  his  judicial  consideration,  whenever 
his  general  jurisdiction  over  the  subject-matter  is  invoked.  Indeed, 
some  of  the  most  difficult  and  embarrassing  questions  which  a  judicial 


PUBLIC   OFFICERS  73 

officer  is  called  upon  to  consider  and  determine  relate  to  his  jurisdic- 
tion, or  that  of  the  court  held  by  him,  or  the  manner  in  which  the 
jurisdiction  shall  be  exercised;  and  the  same  principle  of  exemption 
from  liability  which  obtains  for  errors  committed  in  the  ordinary  pros- 
ecution of  a  suit,  where  there  is  jurisdiction  of  both  subject  and  person, 
applies  in  cases  of  this  kind,  and  for  the  same  reasons."  The  particu- 
lar appropriateness  of  this  language  above  quoted  to  this  case  is  ap- 
parent. 

Numerous  well-considered  decisions  of  courts  of  high  authority  may 
be  cited  in  support  of  the  doctrine  which  we  have  already  stated.  In 
Brooks  v.  Mangan,  86  Mich.  576,  49  N.  W.  633,  24  Am.  St.  Rep. 
137,  it  was  held  that  a  justice  of  the  peace,  who  acted  in  good  faith, 
and  who  had  jurisdiction  of  the  person  and  of  the  subject-matter,  was 
not  civilly  liable  in  damages  to  the  person  injured  for  holding  an  un- 
constitutional ordinance  valid  and  enforcing  it  by  imprisoning  the  per- 
son charged  with  the  violation  of  it.  In  that  case  it  is  said :  "The  Con- 
stitution guaranties  no  man  immunity  from  arrest.  It  guaranties  him 
a  fair  and  impartial  trial.  It  has  provided  him  with  appellate  courts,  to 
which  he  may  resort  for  the  correction  of  errors  committed  by  the 
inferior  courts.  With  this  he  must  be  content.  These  inferior  tribu- 
nals should  be  left  to  the  exercise  of  their  honest  judgment,  and  when 
they  have  so  exercised  it  they  are  exempt  from  civil  liability  for  errors. 
This  is  the  only  rule  which  can  secure  a  proper  administration  of  our 
criminal  laws.  The  interests  of  the  individual  must  in  such  case  yield 
to  the  interests  of  the  public." 

In  Robertson  v.  Parker,  99  Wis.  652,  75  N.  W.  423,  67  Am.  St. 
Rep.  889,  it  was  held  that  where  a  judge  of  lirpited  or  inferior  juris- 
diction secures  jurisdiction  of  a  person  or  cause,  but  in  the  progress 
of  his  investigation  or  proceeding  decides  that  he  has  greater  powers 
than  he  actually  possessed,  and  therefore  pronounces  a  judgment  or 
sentence  in  excess  of  his  powers  and  void,  he  is  not  personally  an- 
swerable to  a  person  subjected  to  imprisonment  under  such  judgment. 
In  Grove  v.  Van  Duyn,  44  N.  J.  Law,  654,  43  Am.  Rep.  412,  where 
this  question  is  considerably  discussed,  the  court  said  in  its  opinion: 
"The  assertion,  I  think,  may  be  safely  made  that  the  great-  weight  of 
judicial  opinion  is  in  opposition  to  the  theory  that  if  a  judge,  as  a  mat- 
ter of  law  and  fact,  has  not  jurisdiction  over  the  particular  case,  there- 
by in  all  cases  he  incurs  a  liability  to  be  sued  by  any  one  injuriously 
affected  by  his  assumption  of  cognizance  over  it.  The  doctrine  that 
an  officer,  having  general  powers  of  adjudication,  must  at  his  peril  pass 
upon  the  question,  which  is  often  one  difficult  of  solution,  whether  the 
facts  before  him  place  the  given  case  under  his  cognizance,  is  as  un- 
reasonable as  it  is  impolitic."  And  again:  "Where  the  judge  is  called 
upon  by  the  facts  before  him  to  decide  whether  his  authority  extends 
over  the  matter,  such  an  act  is  a  judicial  one,  and  such  officer  is  not 
liable  in  a  suit  to  the  person  affected  by  his  decision,  whether  such  de- 


74  PARTIES 

cision  be  right  or  wrong ;  but  when  no  facts  are  present,  or  only  such 
facts  as  have  neither  legal  value  nor  color  of  legal  value  in  the  affairs, 
then  in  that  event  for  the  magistrate  to  take  jurisdiction  is  not  in  any 
manner  the  performance  of  a  judicial  act,  but  simply  the  commission 
of  an  official  wrong.  This  criterion  seems  a  reasonable  one.  It  pro- 
tects a  judge  against  the  consequences  of  every  error  of  judgments, 
but  it  leaves  him  answerable  for  the  commission  of  wrong  that  is  prac- 
tically willful.  Such  protection  is  necessary  to  the  independence  and 
usefulness  of  the  judicial  officer,  and  such  responsibility  is  important 
to  guard  the  citizen  against  official  oppression." 

In  Calhoun  v.  Little,  106  Ga.  336,  32  S.  E.  86,  43  L.  R.  A.  630,  71 
Am.  St.  Rep.  254,  the  court  held  that  a  judicial  officer  of  an  inferior 
court  was  not  liable  in  a  civil  action  to  the  plaintiff  for  inflicting  a  pun- 
ishment upon  him  under  a  void  ordinance.  In  that  case  the  court  dis- 
cusses the  question  of  the  distinction  between  the  immunity  of  a  judge 
of  a  superior  and  of  an  inferior  court,  and,  after  citing  many  cases 
herein  referred  to,  as  well  as  others,  lays  down  this  rule:  "But  all 
judicial  officers  stand  upon  the  same  footing  and  must  be  governed  by 
the  same  rules.  It  follows  from  what  has  been  said  that  where  the 
court  has  jurisdiction  of  the  subject-matter  of  the  offense,  and  the 
presiding  officer  erroneously  decides  that  the  court  has  jurisdiction  of 
the  person  committing  it,  or  commits  an  act  in  excess  of  his  jurisdic- 
tion, he  will  not  be  liable  in  a  civil  action  for  damages." 

In  Henke  v.  McCord,  55  Iowa,  378,  7  N.  W.  623,  it  was  decided  that 
a  justice  of  the  peace,  who  enforces  an  ordinance  which  is  void  for 
want  of  power  in  the  city  to  enact  it,  cannot  be  held  liable  therefor  in  a 
civil  action  for  damages.  In  Thompson  v.  Jackson,  93  Iowa,  376,  61 
N.  W.  1004,  27  L.  R.  A.  92,  it  was  decided  that  a  justice  of  the  peace, 
like  judges  of  the  superior  courts,  is  protected  from  personal  liability 
for  judicial  acts  in  excess  of  his  jurisdiction,  if  he  acted  in  good  faith, 
believing  that  he  had  jurisdiction.  The  court  there  said:  "The  cur- 
rent of  legal  thought  is  that  the  distinction  [between  judges  of  su- 
perior and  of  inferior  courts]  is  unreasonable,  unjust,  illogical,  and 
ought  not  to  obtain."  In  Bell  v.  McKinney,  63  Miss.  187,  it  was  held 
that  where  a  magistrate  had  authority  to  require  a  person  brought 
before  him  to  give  bail  for  his  appearance  at  a  superior  court,  but, 
under  an  erroneous  judgment  as  to  the  extent  of  his  authority  and  in 
good  faith,  tried  such  person,  and,  upon  his  conviction,  sentenced  him 
to  pay  a  fine  or  be  imprisoned,  the  magistrate  was  held  not  liable  in 
damages  to  the  person  aggrieved. 

We  are  aware  of  some  decisions  wherein  a  different  conclusion  has 
been  reached,  of  which,  perhaps,  Piper  v.  Pearson,  2  Gray  (Mass.)  120, 
61  Am.  Dec.  438,  may  be  a  leading  case;  but  we  prefer  the  more 
liberal  doctrine  already  stated,  which  is  so  abundantly  supported  by 
the  authorities  already  referred  to,  as  well  as  by  others.  The  facts 
already  stated  bring  the  case  of  the  judge  who  acted  upon  the  original 


PUBLIC   OFFICERS  75 

complaints  entirely  within  this  doctrine  of  immunity  from  civil  liability 
for  judicial  errors.  He  was  the  judge  of  the  Augusta  municipal  court, 
a  court  of  record,  having  original  jurisdiction  over  all  offenses  of  this 
character,  the  violation  of  city  ordinances,  within  the  limits  of  his  ter- 
ritorial jurisdiction.  His  court  had  jurisdiction  over  the  general  sub- 
ject-matter, as  we  have  already  defined  that  expression,  and  as  it  is 
defined  in  Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129.  As  we 
have  already  seen,  the  city  had  express  statutory  authority  to  pass 
such  an  ordinance,  and  it  had  been  duly  passed  by  the  city  council  and 
published  among  the  ordinances  of  the  city,  although  not  published, 
as  required  by  statute  before  taking  effect,  in  a  newspaper.  The  judge 
had  every  reason  to  believe  that  all  of  the  preliminaries  required  by 
statute  had  been  complied  with,  and  had  no  knowledge  or  reason  to 
suppose  that  this  particular  ordinance  had  not  been  published  in  a 
newspaper  as  required.  There  is  no  suggestion  that  he  did  not  act  in 
entire  good  faith  in  the  premises.  He  therefore  should  not  be  held 
liable  in  damages  to  the  plaintiff,  whose  rights  were  fully  protected  by 
the  opportunity  to  appeal  from  an  erroneous  decision  to  an  appellate 
court,  where  the  error  might  be  corrected. 

Suppose  this  objection  to  the  validity  of  the  ordinance  had  been 
raised  at  the  hearing,  and  the  judge  had  then  decided,  although  errone- 
ously, that  the  ordinance  as  a  matter  of  fact  had  been  published  as 
the  statute  required;  it  would  hardly  be  claimed  that  he  was  liable 
because  of  this  erroneous  decision  upon  the  question  of  fact.  Or  sup- 
pose, the  point  being  made,  he  had  decided  as  a  matter  of  law,  still 
erroneously,  perhaps,  that  the  statute  was  merely  directory  and  that 
the  ordinance  was  valid  and  effective,  notwithstanding  the  fact  that 
it  never  had  been  published  in  a  newspaper;  it  could  then  hardly  be 
claimed  that  he  was  liable  in  damages  to  a  party  aggrieved  for  his 
erroneous  judicial  decision  of  a  question  that  arose  and  had  to  be 
passed  upon  by  him  in  his  judicial  capacity  during  the  course  of  the 
proceedings.  He  is  not  more  liable,  in  our  opinion,  because  of  the  fact 
that  he  had  no  knowledge  of  this  failure  as  to  one  of  the  preliminary 
requisites,  and  because  the  point  was  not  made  at  the  hearing  before 
him. 

For  these  reasons,  none  of  these  defendants  are  liable,  and  the  entry 
will  be: 

Judgment  for  defendants. 


76  PARTIES 


2.  MINISTERIAL  OFFICERS  * 

BAIR  v.  STRUCK. 
(Supreme  Court  of  Montana,  1903.    29  Mont.  45,  74  Pac.  69,  63  L.  R.  A.  481.) 

HOLLOWAY,  J.5  This  action  was  commenced  by  the  plaintiff,  Bair, 
to  recover  damages  from  the  defendant  for  injury  to  personal  property. 
The  complaint  alleges  that  in  August,  1899,  the  plaintiff  was  the  owner 
of  150  head  of  Merino  bucks,  which  had  lately  been  imported  into  this 
state  from  the  state  of  Oregon ;  that  the  defendant  was  deputy  sheep 
inspector  for  Yellowstone  county,  and  as  such  took  the  sheep  from  the 
possession  of  the  plaintiff,  and  subjected  them  to  certain  quarantine 
regulations ;  that  none  of  the  sheep  were  diseased ;  that  the  defendant 
wrongfully  and  negligently  prepared  the  materials  used  for  dipping 
the  sheep,  and  put  therein  carbolic  acid  or  other  poisonous  matters  in 
such  quantities  that  69  head  of  said  sheep  were  killed,  and  the  remain- 
ing 81  so  badly  injured  as  to  render  them  unfit  for  breeding  purposes, 
for  which  they  were  purchased.  The  prayer  of  the  complaint  was  for 
$2,100  damages.  The  defendant  admitted  in  his  answer  that  he  was 
deputy  sheep  inspector,  and  that  as  such  he  dipped  the  sheep  in  ques- 
tion on  August  20,  1899,  and  denied  the  other  material  allegations  of 
the  complaint.  By  way  of  an  affirmative  defense  the  defendant  alleged 
that  the  dipping  of  the  sheep  in  question  was  done  by  him  under  and 
by  virtue  of  a  quarantine  proclamation  issued  by  the  Governor  of  Mon- 
tana on  April  15,  1899.  The  cause  was  tried  to  a  jury,  which  returned 
a  verdict  in  favor  of  the  plaintiff  for  $1,055.50,  and  from  the  judgment 
entered  for  the  amount  of  the  verdict  and  costs,  and  from  an  order 
denying  the  defendant  a  new  trial,  these  appeals  are  taken. 

It  is  earnestly  contended  that  the  complaint  shows  on  its  face  that  in 
the  discharge  of  his  duties  the  defendant  acted  as  a  quasi  judicial  officer, 
and  therefore  is  not  liable  for  damages  arising  from  his  negligence,  and 
would  only  be  liable  for  such  damages  as  were  occasioned  by  his  will- 
ful or  wanton  misconduct,  and  no  such  misconduct  is  alleged.  Such 
portions  of  the  Political  Code  as  are  applicable  to  the  facts  of  this  case 
read  as  follows : 

"Sec.  3034.  Whenever  the  Governor,  by  proclamation,  quarantines 
[sheep]  for  inspection  as  provided  in  the  next  section  any  sheep 
brought  into  Montana,  the  deputy  inspector  of  the  county  in  which  such 
sheep  may  come,  must  immediately  inspect  the  same,  and  if  he  finds 
that  they  are  infected  with  scab,  or  any  other  infectious  disease,  he 
must  cause  the  same  to  be  held  within  a  certain  limit  or  place  in  his 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  42. 
6  A  portion  of  the  opinion  is  omitted. 


PUBLIC   OFFICERS  77 

said  county,  to  be  defined  by  him,  until  such  disease  has  been  eradicated, 
as  provided  in  the  next  preceding  section. 

"Sec.  3035.  Whenever  the  Governor  has  reason  to  believe  that  any 
disease  mentioned  by  this  article  has  become  epidemic  in  certain  lo- 
calities in  any  other  state  or  territory,  or  that  conditions  exist  that  ren- 
der sheep  likely  to  convey  disease,  he  must  thereupon  by  proclamation, 
designate  such  localities  and  prohibit  the  importation  from  them  of 
any  sheep  into  this  state,  except  under  such  restrictions  as  he,  after 
consultation  with  the  veterinary  surgeon,  may  deem  proper." 

Acting  under  the  authority  of  these  sections,  the  Governor  of  Mon- 
tana, on  April  15,  1899,  issued  a  proclamation,  the  pertinent  portions 
of  which  read  as  follows :  "Whereas,  I  have  reason  to  believe  that  con- 
ditions exist  which  render  the  class  of  sheep  herein  designated  rams, 
or  bucks,  or  stock  sheep,  when  brought  into  this  state,  liable  to  convey 
the  disease  known  as  'scab,'  it  is  hereby  ordered  that  all  rams,  or  bucks, 
or  stock  sheep,  imported  into  the  state  of  Montana,  from  any  other 
state  or  territory  of  the  United  States  or  foreign  countries  whatsoever, 
must  when  shipped  be  loaded  at  point  of  starting  into  properly  disin- 
fected car  or  cars,  and  shipped  in  such  properly  disinfected  car  or  cars 
into  this  state,  where,  upon  arrival  at  the  state  line  of  Montana,  or 
the  closest  available  point  thereto  where  the  sheep  are  to  be  unloaded 
to  be  driven  to  destination  in  the  state,  and  before  being  turned  upon 
the  public  domain  or  upon  private  premises,  and  all  rams,  bucks,  or 
stock  sheep  driven  into  or  through  any  portion  of  this  state  from  any 
adjoining  state  or  country,  avoiding  all  quarantine  yards  and  areas, 
shall  be  held  at  such  point  or  points  as  may  be  hereinafter  designated 
and  there  dipped  under  the  supervision  of  the  state  veterinarian  through 
the  deputy  sheep  inspector  of  the  county  into  which  the  sheep  are  to 
remain,  and  said  sheep  shall  be  dipped  in  some  recognized  and  reliable 
dip  known  to  be  efficient  in  the  cure  of  scab,  twice,  the  second  dip  to 
occur  within  10  days  or  between  10  and  12  days  after  the  first  dipping." 
Under  the  foregoing  provisions  it  was  made  the  duty  of  the  Governor 
to  determine  what  sheep,  not  themselves  diseased,  should  be  quarantin- 
ed, and  to  prescribe  the  quarantine  regulations.  In  doing  so  he  doubt- 
less acted  in  a  quasi  judicial  capacity,  and,  having  once  determined  that 
fact,  and  having  prescribed  such  regulations  in  his  proclamation,  the 
only  duty  devolving  upon  the  defendant  was  to  carry  such  regulations 
into  effect. 

But  it  is  contended  that  under  the  provisions  of  the  Governor's  proc- 
lamation— "said  sheep  shall  be  dipped  in  some  recognized  and  reliable 
dip,  known  to  be  efficient  in  the-  cure  of  scab" — the  defendant  was 
called  upon  to  exercise  his  judgment  and  discretion  in  determining  the 
material  to  be  used  and  the  method  of  its  application,  and  in  this  he 
acted  in  a  quasi  judicial  capacity.  With  this  contention  we  cannot 
agree.  The  law  contemplates  that  6nly  men  who,  by  their  skill  and 
experience,  are  competent,  shall  be  appointed  such  deputies,  and  in- 
vested with  the  duty  of  carrying  into  execution  this  police  power  of 


78  PARTIES 

the  state.  The  mere  fact  that  such  officers  are  called  upon  to  exercise 
some  discretion  or  judgment  in  selecting  materials  to  be  used  and  the 
manner  of  their  use  does  not  change  the  character  of  their  acts  from 
ministerial  to  judicial  or  quasi  judicial  ones.  Experience  teaches  that 
few,  if  any,  ministerial  officers  are  not  called  upon  to  exercise  some 
judgment  or  discretion  in  the  performance  of  their  official  duties.  But, 
if  the  contention  of  the  appellant  be  sustained,  the  distinction  between 
ministerial  and  quasi  judicial  acts  is  practically  abolished.  As  distin- 
guishing, between  acts  quasi  judicial  and  acts  ministerial  in  their  char- 
acter, the  following  definitions  we  think  correctly  state  the  law  :  "Quasi 
judicial  functions  are  those  which  lie  midway  between  the  judicial  and 
ministerial  ones.  The  lines  separating  them  from  such  as  are  thus  on 
their  two  sides  are  necessarily  indistinct ;  but,  in  general  terms,  when 
the  law,  in  words  or  by  implication,  commits  to  any  officer  the  duty  of 
looking  into  facts,  and  acting  upon  them,  not  in  a  way  which  it  specifi- 
cally directs,  but  after  a  discretion  in  its  nature  judicial,  the  function 
is  termed  quasi  judicial."  Mechem  on  Public  Officers,  §  637;  Bishop 
on  Noncontract  Law,  §§  785,  786.  "Where  a  power  rests  in  judgment 
or  discretion,  so  that  it  is  of  a  judicial  nature  or  character,  but  does  not 
involve  the  exercise  of  the  functions  of  a  judge,  or  is  conferred  upon 
an  officer  other  than  a  judicial  officer,  the  expression  used  is  generally 
'quasi  judicial.'  *  *  *  The  officer  may  not  in  strictness  be  a 
judge;  still,  if  his  powers  are  discretionary,  to  be  exerted  or  withheld 
according  to  his  own  view  of  what  is  necessary  and  proper,  they  are  in 
their  nature  judicial."  Throop  on  Public  Officers,  §  534.  "A  minis- 
terial act  may  perhaps  be  defined  to  be  one  which  a  person  performs  in 
a  given  state  of  facts,  in  a  prescribed  manner,  in  obedience  to  the  man- 
date of  legal  authority,  without  regard  to  or  the  exercise  of  his  own 
judgment  upon  the  propriety  of  the  act  done."  Id.  §  537;  Flournoy 
v.  Jeffersonville,  17  Ind.  169,  79  Am.  Dec.  468;  Pennington  v.  Streight, 
54  Ind.  376.  "  *  *  *  In  the  same  line,  a  ministerial  act  has  also 
been  defined  as  an  act  performed  in  a  prescribed  manner,  in  obedience 
to- the  law  or  the  mandate  of  legal  authority,  without  regard  to,  or  the 
exercise  of,  the  judgment  of  the  individual  upon  the  propriety  of  the 
acts  being  done."  Mechem  on  Public  Officers,  §  657.  An  act  is  not 
necessarily  taken  out  of  the  class  styled  "ministerial"  because  the  officer 
performing  it  is  nevertheless  vested  with  a  discretion  respecting  the 
means  or  the  method  to  be  employed.  Such  is  not  the  judgment  or  dis- 
cretion which  is  an  essential  element  of  judicial  action.  McCord  v. 
High,  24  Iowa,  336;  Grider  v.  Tally,  77  Ala.  422,  54  Am.  Rep.  65; 
Mechem  on  Public  Officers,  §  658 ;  Ency.  Law  (2d  Ed.)  377. 

The  same  doctrine  is  announced  in  Hicks  v.  Dorn,  42  N.  Y.  47.  In 
this  case  the  plaintiff,  Hicks,  was  the  owner  of  a  canal,  boat,  and  the 
defendant  was  the  superintendent  of  repairs  in  charge  of  one  section 
of  the  Erie  Canal.  Along  this  canal  was  a  dry  dock,  into  which  plain- 
tiff's boat  had  been  taken  for  repairs.  In  May,  1865,  there  was  a  vio- 
lent spring  rain,  which  raised  the  water  in  the  canal  to  such  an  extent 


PUBLIC   OFFICERS  79 

that  in  some  places  it  ran  over  the  banks,  and  it  became  necessary  to 
open  the  waste  gates  connected  with  the  dry  dock  to  let  off  the  surplus 
water.  The  captain  commenced  moving  the  boat  into  the  canal,  and 
when  about  half  way  through  the  gates  in  the  canal,  the  water  having 
run  rapidly  out  of  that  compartment  of  the  dry  dock,  the  boat  was  left 
resting  upon  the  sill  of  the  waste  gate,  about  onerhalf  of  the  boat  ex- 
tending into  the  canal  and  the  other  half  in  the  dry  dock.  In  order 
to  render  the  canal  navigable,  it  became  necessary  to  move  the  boat; 
and  several  methods  for  the  accomplishment  of  this  purpose  were  open 
to  the  superintendent,  one  of  which  was  cutting  up  and  removing  the 
boat  so  as  to  close  the  gates,  and  this  method  he  pursued  as  the  most 
expeditious  for  accomplishing  his  purpose.  An  action  having  been 
brought  against  him  by  the  owner  of  the  boat,  among  other  defenses 
set  up  was  that  in  performing  his  duties  the  defendant  had  acted  in  a 
quasi  judicial  capacity,  and  could  not  be  held  liable  except  for  wanton 
misconduct  on  his  part.  In  disposing  of  this  contention  the  court  said : 
"It  is  claimed  that  the  defendant,  in  determining  to  remove  this  boat, 
and  in  the  removal  of  it,  had  a  judicial  discretion  to  exercise;  and 
hence  that  he  is  not  liable,  in  a  civil  action,  for  the  manner  in  which 
he  exercised  this  discretion.  I  am  unable  to  see  in  what  sense  the  de- 
fendant, as  to  this  transaction,  acted  judicially.  The  law  made  it  his 
duty  to  put  this  canal  in  repair,  and  it  was  not  left  to  his  discretion 
to  determine  whether  he  would  discharge  that  duty  or  not.  The  law 
made  it  an  imperative  duty,  and,  if  he  had  neglected  to  perform  it,  he 
would  have  been  liable  civilly  for  damages  sustained  by  any  person 
from  his  neglect  of  duty.  In  the  discharge  of  this  duty,  thus  impera- 
tively imposed  upon  him  by  law,  he  acted  ministerially.  It  is  true  that 
he  was  bound  to  exercise  his  discretion  as  to  the  methods  and  instru- 
mentalities to  be  employed,  and  this  is  true  of  all  ministerial  officers; 
and  yet  it  has  never  been  held  that,  merely  because  ministerial  officers 
have  a  discretion  to  exercise,  that  gives  them  the  immunity  of  judicial 
officers.  In  this  case,  then,  the  defendant  was  bound  to  discharge  his 
ministerial  duties  in  a  prudent,  careful  manner,  without  infringing  up- 
on the  rights  of  private  individuals,  or  unnecessarily  injuring  them, 
and  for  an  improper  discharge  of  his  duty  the  law  makes  him  liable 
to  the  individual  injured." 

The  question  involved  in  this  controversy  is  not  whether  the  policy 
adopted  was  wise,  but  whether  a  wrong  was  done  in  the  details  of  its 
execution.  We  are  of  the  opinion  that  in  the  discharge  of  his  duty 
the  defendant  acted  in  a  ministerial  capacity  only.  *  *  * 


80  PARTIES 

PEOPLE  v.  WARREN. 

(Supreme  Court  of  New  York,  1843.    5  Hill,  440.) 

Certiorari  to  the  Oneida  general  sessions,  where  the  defendant  was 
convicted  of  an  assault  and  battery  upon  one  Johnson,  a  constable. 
Johnson  arrested  the  defendant  on  a  warrant  issued  by  the  inspectors 
of  election  of  the  city  of  Utica  for  interrupting  the  proceedings  at 
the  election  by  disorderly  conduct  in  the  presence  of  the  inspectors.  1 
R.  S.  (1st  Ed.)  p.  137,  §  37.  The  warrant  was  regular  and  sufficient 
upon  its  face.  The  defendant  resisted  the  officer  and  for  that  as- 
sault he  was  indicted.  The  defendant  offered  to  prove  that  he  had  not 
been  in  the  presence  or  hearing  of  the  inspectors  at  any  time  during 
the  election  and  that  Johnson  knew  it.  The  court  excluded  the  evidence 
and  the  defendant  was  convicted.  He  now  moved  for  a  new  trial  on 
a  bill  of  exceptions. 

PER  CURIAM.  Although  the  inspectors  had  no  jurisdiction  of  the 
subject  matter,  yet  as  the  warrant  was  regular  upon  its  face,  it  was 
sufficient  authority  for  Johnson  to  make  the  arrest  and  the  defendant 
had  no  right  to  resist  the  officer.  The  knowledge  of  the  officer  that 
the  inspectors  had  no  jurisdiction  is  not  important.  He  must  be  gov- 
erned and  Is  protected  by  the  process,  and  cannot  be  affected  by  any- 
thing which  he  has  heard  or  learned  out  of  it.  There  are  some  dicta 
the  other  way;  but  we  have  held  on  several  occasions  that  the  officer 
is  protected  by  process  regular  and  legal  upon  its  face  whatever  he  may 
have  heard  going  to  impeach  it. 

New  trial  denied. 


INFANTS  81 


II.  Infants9 


SLAYTON  v.  BARRY. 

(Supreme  Judicial  Court  of  Massachusetts,  1900.    175  Mass.  513,  56  N.'E.  574, 
49  L.  R.  A.  560,  78  Am.  St.  Rep.  510.) 

MORTON,  J.  The  declaration  in  this  case  is  in  two  counts.  The  sec- 
ond count  is  in  trover  for  the  goods  described  in  the  first  count.  The 
first  count  alleges,  in  substance,  that  the  defendant,  intending  to  de- 
fraud the  plaintiff,  deceitfully  and  fraudulently  represented  to  him 
that  he  was  of  full  age,  and  thereby  induced  the  plaintiff  to  sell  and 
deliver  to  him  the  goods  described,  and,  though  often  requested,  had 
refused  to  pay  for  or  return  the  goods,  but  had  delivered  them  to 
persons  unknown  to  the  plaintiff.  The  case  is  here  on  exceptions  to 
the  refusal  of  the  presiding  judge  to  give  certain  instructions  requested 
by  the  plaintiff,  and  to  his  ruling  ordering  a  verdict  for  the  defendant. 
The  question  is  whether  the  plaintiff  can  maintain  his  action.  He  could 
not  bring  an  action  of  contract,  and  so  has  brought  an  action  of  tort. 
The  precise  question  presented  has  never  been  passed  upon  by  this 
court.  Merriam  v.  Cunningham,  11  Cush.  40,  43.  In  other  jurisdic- 
tions it  has  been  decided  differently  by  different  courts.  We  think 
that  the  weight  of  authority  is  against  the  right  to  maintain  the  ac- 
tion. Johnson  v.  Pie,  1  Lev.  169,  1  Sid.  258,  1  Keb.  905 ;  Grove  v. 
Nevill,  1  Keb.  778;  Jennings  v.  Rundall,  8  Term  R.  335;  Green  v. 
Greenbank,  2  Marsh.  485 ;  Price  v.  Hewett,  8  Exch.  146 ;  Wright  v. 
Leonard,  11  C.  B.  (N.  S.)  258;  De  Roo  v.  Foster,  12  C.  B.  (N.  S.)  272; 
Gilson  v.  Spear,  38  Vt.  311,  88  Am.  Dec.  659;  Nash  v.  Jewett,  61  Vt. 
501,  18  Atl.  47,.  4  ,L.  R.  A.  561,  15  Am.  St.  Rep.  931;  Ferguson  v. 
Bobo,  54  Miss.  121;  Brown  v.  Dunham,  1  Root  (Conn.)  272;  Geer 
v.  Hovey,  Id.  179;  Wilt  v.  Welsh,  6  Watts  (Pa.)  9;  Burns  v.  Hill, 
19  Ga.  22;  Kilgore  v.  Jordan,  17  Tex.  341 ;  Benj.  Sales  (6th  Ed.)  23; 
Cooley,  Torts  (2d  Ed.)  126;  2  Add.  Torts,  §  1314.  See,  contra,  Fitts 
v.  Hall,  9  N.  H.  441 ;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep.  189; 
Hall  v.  Butterfield,  59  N.  H.  354,  47  Am.  Rep.  209;  Rice  v.  Boyer, 
108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53 ;  Wallace  v.  Morss,  5  Hill 
(N.  Y.)  391. 

The  general  rule  is,  of  course,  that  infants  are  liable  for  their  torts. 
Sikes  v.  Johnson,  16  Mass.  389 ;  Homer  v.  Thwing,  3  Pick.  492 ;  Shaw 
v.  Coffin,  58  Me.  254,  4  Am.  Rep.  290 ;  Vasse  v.  Smith,  6  Cranch,  226, 
3  L.  Ed.  207.  But  the  rule  is  not  an  unlimited  one.  It  is  to  be  applied 
with  due  regard  to  the  other  equally  well  settled  rule,  that,  with  cer- 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  43. 
CHAP.CAS. TORTS — 6 


82  PARTIES 

tain  exceptions,  they  are  not  liable  on  their  contracts;  and  the  domi- 
nant consideration  is  not  that  of  liability  for  their  torts,  but  of  pro- 
tection from  their  contracts.  The  true  rule  seems  to  us  to  be  as  stated 
in  Association  v.  Fairhurst,  9  Exch.  422,  429,  where  it  was  sought  to 
hold  a  married  woman  for  a  fraudulent  misrepresentation,  namely :  If 
the  fraud  "is  directly  connected  with  the  contract,  *  *  *  and  is 
the  means  of  effecting  it,  and  parcel  of  the  same  transaction,"  then 
the  infant  will  not  be  liable  in  tort.  The  rule  is  stated  in  2  Kent, 
Comm.  (8th  Ed.)  §  241,  as  follows :  "The  fraudulent  act,  to  charge  him 
[the  infant],  must  be  wholly  tortious;  and  a  matter  arising  ex  con- 
tractu,  though  injected  with  fraud,  cannot  be  changed  into  a  tort  in 
order  to  charge  the  infant  in  trover  or  case  by  a  change  in  the  form 
of  the  action."  In  the  present  case  it  seems  to  us  that  the  fraud  on 
which  the  plaintiff  relies  was  part  and  parcel  of  the  contract,  and  di- 
rectly connected  with  it.  The  plaintiff  cannot  maintain  his  action  with- 
out showing  that  there  was  a  contract,  which  he  was  induced  to  enter 
into  by  the  defendant's  fraudulent  representations  in  regard  to  his  ca- 
pacity to  contract,  and  that  pursuant  to  that  contract  there  was  a  sale 
and  delivery  of  the  goods  in  question.  Whether,  as  an  original  proposi- 
tion, it  would  be  better  if  the  rule  were  as  laid  down  in  Fitts  v.  Hall, 
supra,  and  Hall  v.  Butterfield,  supra,  in  New  Hampshire,  and  Rice  v. 
Boyer,  supra,  in  Indiana,  we  need  not  consider.  The  plaintiff  relies 
on  Homer  v.  Thwing,  supra;  Badger  v.  Phinney,  15  Mass.  359,  8 
Am.  Dec.  105  ;  and  Walker  v.  Davis,  1  Gray,  506.  In  Walker  v.  Davis, 
supra,  there  was  no  completed  contract,  and  the  title  did  not  pass.  The 
sale  of  the  cow  by  the  defendant  operated,  therefore,  clearly,  as  a 
conversion.  Badger  v.  Phinney,  supra,  was  an  action  of  replevin ;  and 
it  was  held  that  the  property  had  not  passed,  or  if  it  had,  that  it  had 
revested  in  the  plaintiff  in  consequence  of  the  defendant's  fraud.  The 
plaintiff  maintained  his  action  independently  of  the  contract.  In  Hom- 
er v.  Thwing,  supra,  the  tort  was  only  incidentally  connected  with  the 
contract  of  hiring.  We  think  that  the  exceptions  should  be  overruled. 
So  ordered. 


SERVANTS   AND   AGENTS  83 


III.  Servants  and  Agents7 


VAN  ANTWERP  v.  LINTON. 

(Supreme  Court  of  New  York,  General  Term,  First   Department,   1895.     89 
Hun,  417,  35  N.  Y.  Supp.  318,  affirmed  157  N.  Y.  716,  53  N.  B.  1133.) 

PARKER,  J.  This  appeal  brings  up  a  judgment  entered  on  the  dis- 
missal of  the  complaint  after  the  opening  address  to  the  jury  by  plain- 
tiff's counsel,  which  was  taken  down.  From  the  complaint  and  open- 
ing, it  appears  that  the  plaintiff  was  injured  by  the  fall  of  the  grand 
stand  at  the  Yale-Princeton  football  game  on  Thanksgiving  Day,  1890, 
on  grounds  in  possession  of  the  Brooklyn's  Limited,  a  corporation  or- 
ganized under  the  laws  of  the  state  of  New  York.  The  action  was 
brought  against  the  Brooklyn's  Limited  and  Messrs.  Linton,  Chauncey, 
and  Wallace,  who  were  appointed  a  committee  of  the  board  of  direc- 
tors of  the  Brooklyn's  Limited,  to  put  the  grounds  in  condition  for 
the  exhibition  of  the  game.  The  Brooklyn's  Limited  made  default, 
and  the  question  presented  to  the  trial  court,  upon  the  motion  to  dis- 
miss the  complaint,  was  whether,  from  the  complaint  and  opening,  a 
cause  of  action  against  the  individual  defendants  was  stated.  It  was 
conceded  that  the  individual  defendants  did  not  have  any  lease  from 
the  Brooklyn's  Limited,  nor  any  one  else,  running  to  them;  and  the 
sole  ground  upon  which  the  plaintiff  sought  to  charge  them  with  lia- 
bility was  that  they  were  appointed  a  committee  by  the  directors  of 
the  corporation  to  erect  a  stand,  and  otherwise  provide  for  the  recep- 
tion and  convenience  of  the  public,  and  that  by  reason  of  their  negli- 
gent omission  of  duty  there  was  a  defective  construction  of  the  stand, 
which  led  to  its  falling,  resulting  in  injury  to  the  plaintiff.  As  it  was 
conceded  that  the  Brooklyn's  Limited  was  a  domestic  corporation  duly 
organized  under  the  laws  of  this  state,  and  in  possession  of  the  prem- 
ises when  the  stand  was  erected,  and  also  at  the  time  of  the  accident, 
liability  against  the  individual  defendants  could  not  be  predicated  upon 
their  being  directors,  officers,  or  stockholders  in  such  corporation.  De- 
marest  v.  Flack,  128  N.  Y.  205,  28  N.  E.  645,  13  L.  R.  A.  854.  That 
they  were  the  agents  of  the  corporation  in  directing  and  superintend- 
ing the  erection  of  the  stand  was  assumed  by  the  learned  trial  judge, 
as  he  was  bound  to  do,  upon  the  complaint  and  opening ;  and  he  reach- 
ed the  conclusion  that  the  acts  with  which  they  were  charged  consti- 
tuted nonfeasance,  and  not  misfeasance.  If  he  was  right  in  such  re- 
spect, it  is  conceded  that  the  complaint  was  properly  dismissed;  for, 
whatever  may  be  the  rule  in  other  jurisdictions,  it  is  conceded  that  in 
this  state  an  agent  or  servant  is  not  liable  to  third  persons  for  non- 

7  For  discussion  of  principles,  see  Chapin  on  Torts,  §  46. 


84  PARTIES 

f  easance.  As  between  himself  and  his  master,  he  is  bound  to  serve  him 
with  fidelity;  and  for  a  breach  of  his  duty  he  becomes  liable  to  the 
master,  who,  in  turn,  may  be  charged  in  damages  for  injuries  to  third 
persons  occasioned  by  the  nonfeasance  of  the  servant.  For  misfeasance 
the  agent  is  generally  liable  to  third  parties  suffering  thereby.  The 
distinction  between  nonfeasance  and  misfeasance  has  been  expressed 
by  the  courts  of  this  state  as  follows:  "If  the  duty  omitted  by  the 
agent  or  servant  devolved  upon  him  purely  from  his  agency  or  em- 
ployment, his  omission  is  only  of  a  duty  he  owes  his  principal  or  mas- 
ter, and  the  master  alone  is  liable ;  while,  if  the  duty  rests  upon  him 
in  his  individual  character,  and  was  one  that  the  law  imposed  upon 
him  independently  of  his  agency  or  employment,  then  he  is  liable." 

Appellant  urges  that  although  these  individual  defendants  were 
charged  by  the  corporation  with  the  duty  of  erecting  this  stand,  and 
the  acts  complained  of  consisted  in  omitting  to  provide  for  a  con- 
struction of  sufficient  strength  to  withstand  the  strain  to  which  it  was 
subjected,  nevertheless  they  were  guilty  of  misfeasance,  rather  than 
nonfeasance.  With  commendable  diligence,  he  has  brought  to  our  at- 
tention authorities  in  other  jurisdictions  tending  to  support  his  con- 
tention ;  but  we  refrain  from  their  consideration,  because  it  is  our  un- 
derstanding that  the  courts  of  this  state  have  determined  otherwise. 
In  Murray  v.  Usher,  117  N.  Y.  542,  23  N.  E.  564,  the  plaintiff,  while 
employed  upon  a  platform  in  a  sawmill  belonging  to  two  of  the  de- 
fendants, sustained  injuries,  by  reason  of  its  falling,  which  occasioned 
his  death.  His  administrator  brought  an  action  against  the  owners 
of  the  mill  and  one  Lewis,  who  was  their  superintendent  having  gen- 
eral charge  of  the  business,  and  being  specially  instructed  to  look  after 
the  necessary  repairs,  which  included  the  duty  of  inspecting  the  plat- 
form from  time  to  time  to  see  that  it  was  kept  in  a  safe  condition. 
Judgment  was  recovered  against  all  of  the  defendants.  In  the  court 
of  appeals  the  question  of  the  superintendent's  liability  was  considered ; 
the  court  holding  that  the  omission  of  the  superintendent  to  perform 
the  duty  devolving  upon  him  constituted  nonfeasance,  for  which  he  was 
not  liable  in  a  civil  action,  but  that  his  employers  were.  That  case,  it 
will  be  observed,  is  directly  in  point  with  the  one  under  consideration. 
Lewis,  the  superintendent,  neglected  to  perform  the  duty  which  his 
employers  had  devolved  upon  him,  and  such  neglect  led  to  the  fall 
of  the  platform,  which  caused  plaintiff's  injury.  In  this  case  the  de- 
fendants were  engaged  in  superintending  the  erection  of  the  stand 
As  more  than  one  was  charged  with  such  duty,  they  were  called  a  com- 
mittee. But  when  the  duties  devolved  upon  them  were  of  the  same 
general  character  as  in  Murray's  Case,  and  the  charge  is  that  the  fall 
of  the  stand  was  due  to  their  neglect  to  properly  discharge  the  obliga- 
tions put  upon  them  by  the  corporation.  In  Burns  v.  Pethcal,  75  Hun, 
437,  27  N.  Y.  Supp.  499,  an  attempt  was  made  to  recover  of  a  fore- 
man for  the  loss  of  the  life  of  an  employe,  due,  it  was  charged,  to  the 


SERVANTS   AND   AGENTS  85 

omission  of  the  foreman  to  warn  the  dead  man  of  the  danger  of  work- 
ing in  a  particular  place.  There  was  a  recovery  at  the  circuit,  but  the 
general  term  reversed  the  judgment;  holding  that  a  servant  is  not 
liable  jointly  with  his  master,  where  the  negligence  of  the  servant  con- 
sists of  an  omission  of  a  duty  devolved  upon  him  by  his  employment, 
although  he  may  be  liable  where  he  omits  to  perform  a  duty  which 
rests  upon  him  in  his  individual  character,  and  one  which  the  law 
imposes  upon  him  independently  of  his  employment  These  cases  fully 
sustain  the  decision  of  the  trial  court.  The  judgment  should  be  af- 
firmed, with  costs. 
VAN  BRUNT,  P.  J.,  concurs.  FOLLETT,  J.,  dissents. 


LOUGH  v.  JOHN  DAVIS  &  CO. 

(Supreme  Court  of  Washington,  1902.    30  Wash.  204,  70  Pac.  491,  59  L.  R.  A. 
802,  94  Am.  St.  Rep.  848.) 

DUNBAR,  J.8  This  is  an  action  against  an  agent,  who  was  author- 
ized to  rent  and  repair  the  tenement  house  described  in  the  complaint, 
for  permitting  the  house  to  become  unsafe  for  want  of  repairs,  from 
which  cause  the  plaintiff  was  injured.  Paragraph  2  of  the  complaint 
is  as  follows :  "That  at  all  said  times,  and  for  a  long  time  before,  the 
above-named  defendant,  Sheldon  R.  Webb,  has  been  and  still  is  the 
owner  of  that  certain  real  property  known  as  lots  8  and  9,  in  block 
38,  of  A.  A.  Denny's  addition  to  the  city  of  Seattle,  and  of  the  build- 
ings thereon  situated,  and  that  the  above-named  defendant  John  Davis 
&  Co.  has  had,  and  still  has,  sole  and  absolute  control  and  management 
of  said  real  property  as  the  servant  and  agent  of  said  Sheldon  R. 
Webb,  with  full  power,  authority,  and  direction  from  their  said  prin- 
cipal to  rent  and  repair  the  same,  and  to  keep  the  same  in  repair  and 
safe  condition  for  tenants."  The  other  pertinent  allegations  are  to 
the  effect  that  a  wide  veranda,  extending  along  two  sides  of  the  build- 
ing about  15  feet  from  the  ground,  was  used  in  common  by  all  of  the 
tenants,  and  was  inclosed  by  a  railing ;  that  the  railing  was  allowed  to 
become  old,  rotten,  and  unsafe  through  the  negligence  of  the  defend- 
ants, and  that,  while  the  plaintiff  was  playing  on  said  veranda,  by  rea- 
son of  the  unsafe  condition,  the  railing  gave  way,  and  she  fell  from 
said  veranda  from  a  height  of  15  feet  and  more  from  the  ground,  and 
was  injured,  etc.  To  this  complaint  the  defendant  John  Davis  &  Co. 
interposed  a  demurrer  on  the  ground  that  it  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  against  it,  the  demurring  defendant. 
There  was  no  appearance  by  Sheldon  R.  Webb.  The  demurrer  was 
sustained,  and  the  plaintiff  electing  to  stand  on  her  complaint,  judgment 
was  entered  on  the  demurrer.  From  such  judgment  sustaining  the. 
demurrer  this  appeal  was  taken.  *  *  * 

•  A  portion  of  the  opinion  is  omitted. 


86  PARTIES 

It  is  the  contention  of  the  respondent  that  the  law  is  well  settled 
that  for  a  misfeasance  the  agent  is  personally  liable,  but  that  he  is  never 
liable  for  a  mere  nonfeasance ;  and  that,  the  respondent  being  charged 
only  with  a  nonfeasance  or  neglect  to  do  its  duty,  and  not  with  any 
misfeasance  or  act  which  it  ought  not  to  do,  the  complaint  on  its  face 
shows  that  it  is  not  liable,  and  that  the  demurrer  was  therefore  prop- 
erly sustained.  This  rule  is  announced  by  some  of  the  law  writers 
and  many  of  the  courts.  One  of  the  leading  cases  sustaining  this  doc- 
trine is  Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456, 
where  it  was  held  that  under  the  doctrine  of  both  the  common  and 
civil  law  agents  are  not  liable  to  third  persons  for  nonfeasance  or  mere 
omissions  of  duty,  being  responsible  to  such  parties  only  for  the  actual 
commission  of  those  positive  wrongs  for  which  they  would  be  other- 
wise accountable  in  their  individual  capacity  under  obligations  common 
to  all  men.  In  this  case  a  balcony  which  needed  repairs  fell,  fatally 
injuring  the  plaintiff;  and,  while  the  agent  was  not  responsible  for 
the  injured  party's  being  in  the  house  at  that  particular  time, — he  hav- 
ing obtained  entrance  by  means  of  a  key  obtained  from  some  one  else, 
— the  case  is  discussed  and  the  judgment  based  upon  the  doctrine  above 
announced.  This  is  also  the  established  doctrine  in  New  York.  The 
case  of  Carey  v.  Rochereau  (C.  C.)  16  Fed.  87,  is  a  Louisiana  case, 
and  bases  its  decision  on  Delaney  v.  Rochereau,  supra,  without  dis- 
cussion. Labadie  v.  Hawley,  61  Tex.  177,  48  Am.  Rep.  278,  held,  in 
accordance  with  the  same  rule,  that  an  agent  renting  his  principal's 
house  with  authority  to  construct  a  cooking  range  was  not  liable  for 
injury  to  an  adjoining  proprietor,  caused  by  the  use  of  the  range; 
citing  Story,  Ag.  309,  and  other  authorities.  In  Feltus  v.  Swan,  62 
Miss.  415,  it  was  held  that  an  agent  in  charge  of  a  plantation  was  not 
liable  to  the  owner  of  an  adjoining  plantation  for  damage  resulting 
from  the  malicious  neglect  and  refusal  of  the  agent  to  keep  open  a 
drain  which  it  was  his  duty  as  such  agent  to  keep  open.  The  announce- 
ment of  this  doctrine  is  accredited  by  many  of  the  courts  indorsing  it 
to  the  opinion  in  Lane  v.  Cotton,  12  Mod.  472,  but  it  was,  as  a  matter 
of  fact,  announced  only  incidentally  in  that  case  in  a  dissenting  opinion. 
The  question  of  the  responsibility  of  the  agent  could  not  have  been  be- 
fore that  court,  for  the  action  was  against  a  postmaster  for  the  loss 
of  a  letter  which  was  taken  from  the  mail  by  a  clerk,  and  it  was  only 
the  responsibility  of  the  master,  and  not  that  of  the  servant  or  agent, 
which  was  under  discussion.  The  reason  assigned  to  sustain  this  rule 
is  that  the  responsibility  must  arise  from  some  express  or  implied  ob- 
ligations between  the  particular  parties  standing  in  privity  of  law  or 
contract  with  each  other.  If  this  be  true,  it  is  difficult  to  see  what 
difference  there  is  in  the  obligation  to  their  principal  between  the 
commission  of  an  act  by  the  agents  which  they  are  bound  to  their 
principal  not  to  do  and  the  omission  of  an  act  which  they  have  obli- 
gated themselves  to  their  principal  to  do.  They  certainly  stand  in 


SERVANTS  AND   AGENTS  87 

privity  of  law  or  contract  with  their  principal  exactly  as  much  in 
the  one  instance  as  in  the  other,  for  the  obligation  to  do  what  ought  to 
be  done  is  no  more  strongly  implied  in  the  ordinary  contract  of  agency 
than  is  the  obligation  not  to  do  what  ought  not  to  be  done.  This  rea- 
son for  the  rule  not  being  tenable,  and  no  other  reason  being  obvious, 
the  rule  itself  ought  not  to  obtain;  for  jurisprudence  does  not  con- 
cern itself  with  such  attenuated  refinements.  It  rests  upon  broad  and 
comprehensive  principles  in  its  attempt  to  promote  rights  and  redress 
wrongs.  If  it  takes  note  of  a  distinction,  such  distinction  will  be  a 
practical  one,  founded  on  a  difference  in  principle,  and  not  a  distinc- 
tion without  a  difference ;  and  there  can  be  no  distinction  in  principle 
between  the  acts  of  a  servant  who  puts  in  motion  an  agency  which,  in 
its  wrongful  operation,  injures  his  neighbor,  and  the  acts  of  a  servant 
who,  when  he  sees  such  agency  in  motion,  and  when  it  is'his  duty  to 
control  it,  negligently  refuses  to  do  his  duty,  and  suffers  it  to  operate 
to  the  damage  of  another.  There  is  certainly  no  difference  in  moral 
responsibility,  there  should  be  none  in  legal  responsibility.  Of  course, 
if  the  omission  of  the  act  or  the  nonfeasance  does  not  involve  a  non- 
performance  of  duty,  then  the  responsibility  would  not  attach.  If  it 
does  involve  a  nonperformance  of  duty  to  such  an  extent  that  the 
agent  is  liable  to  the  principal  for  the  damages  ensuing  from  his  neg- 
lect, there  is  no  hardship  in  compelling  him  to  respond  directly  to  the 
injured  party.  Such  practice  is  less  circuitous  than  that  which  neces- 
sitates first  the  suing  of  the  master  by  the  party  injured,  and  then  a 
suit  by  the  master  against  the  servant  to  recoup  the  damages. 

But  the  honorable  judge  who  wrote  the  opinion  in  Delaney  v.  Roch- 
ereau,  supra,  was  mistaken  in  his  announcement  that  the  civil  law  in- 
dorsed the  distinction  upon  which  his  decision  was  based,  for,  while 
the  doctrine  is  stated  in  the  Justinian  Code  that  no  man  could  usually 
be  made  liable  for  a  mere  omission  to  act,  it  was  otherwise  when  the 
omission  to  act  involved  a  negligence  of  duty.  Domat  argues  that,  as 
an  agent  is  at  liberty  not  to  accept  the  order  and  power  which  are 
given  him,  so  he  is  bound,  if  he  does  accept  the  order,  to  execute  it ; 
and,  if  he  fail  to  do  so,  he  will  be  liable  for  the  damages  which  he  shall 
have  occasioned  by  his  not  acting.  Under  the  Aquilian  law  the  dis- 
tinction between  omission  and  commission  was  not  recognized  under 
such  circumstances.  In  the  ninth  Digest  of  the  Aquilian  law  the  fol- 
lowing instance  is  given:  One  servant  lights  a  fire,  and  leaves  it  to 
another.  The  latter  neglects  to  check  the  fire  at  the  proper  time  and 
place,  and  a  villa  is  burned.  The  first  servant  was  charged  with  no 
,  negligence,  because  it  was  his  duty  to  light  the  fire,  and  it  is  argued, 
very  sensibly,  that,  if  the  second  could  not  be  charged  because  not 
putting  out  the  fire  was  simply  an  omission  of  duty,  there  would  be  a 
miscarriage  of  justice.  Is  the  keeper  of  a  drawbridge,  whose  duty 
it  is  to  close  the  draw  after  a  ship  passes  through,  and  who  negligently 
fails  to  perform  that  duty,  allowing  a  car  loaded  with  passengers  to 


88  PARTIES 

be  hurled  into  the  river  below,  to  escape  responsibility  to  the  injured, 
while  the  man  who  attempts  to  operate  it,  but,  in  so  attempting,  op- 
erates it  negligently  and  unskillfully,  is  held  responsible?  Instances 
in  the  ordinary  transactions  of  life  might  be  multiplied  almost  without 
end,  the  very  statement  of  which  shows  conclusively  the  fallacy  of  the 
rule. 

The  attempt  by  the  courts  to  maintain  this  indistinguishable  dis- 
tinction has  led  to  many  inconsistent  decisions.  Thus,  in  Albro  v. 
Jaquith,  4  Gray  (Mass.)  99,  64  Am.  Dec.  56,  the  plaintiff  was  not  al- 
lowed to  recover  of  the  superintendent  of  a  canal  company  for  damages 
caused  by  negligence  in  the  management  of  the  apparatus  used  for 
the  purpose  of  generating,  containing,  and  burning  inflammable  gas; 
the  superintendent  being  the  agent  of  the  company,  and  being  charged 
with  carelessly,  negligently,  and  unskillfully  managing  the  business. 
It  was  held  that  he  was  not  charged  with  any  direct  act  of  misfeasance, 
but  only  with  nonfeasance,  and  that  there  was  no  redress,  because,  as 
the  court  said,  the  obligation  to  be  faithful  and  diligent  was  founded 
in  an  express  contract  with  his  principal.  As  we  have  before  indicat- 
ed, this  would  be  equally  true  of  the  acts  of  commission  or  misfeasance 
in  his  stewardship.  But  in  Bell  v.  Josselyn,  3  Gray,  309,  63  Am.  Dec. 
741 — also  a  Massachusetts  case,  and  decided  the  same  year — it  was 
held  that  an  agent  who  negligently  directed  water  to  be  admitted  to  a 
water  pipe  was  liable  to  a  third  person,  because  such  action  was  mis- 
feasance. In  that  case  it  was  not  claimed  that  the  admission  of  water 
to  the  pipe  was  negligent  or  wrongful,  but  the  negligent  act  or  omis- 
sion was  in  allowing  the  pipe  to  become  obstructed — certainly  as  pure 
an  omission  or  nonfeasance  as  could  be  conceived  of.  But  the  court, 
in  order  to  maintain  the  distinction  which  it  deemed  itself  bound  by 
precedent  to  do,  virtually  obliterated  the  distinction  by  the  following 
circuitous  reasoning:  "The  defendant's  omission  to  examine  the  state 
of  the  pipes  in  the  house  before  causing  the  water  to  be  let  on  was  a 
nonfeasance.  But  if  he  had  not  caused  the  water  to  be  let  on,  that 
nonfeasance  would  not  have  injured  the  plaintiff.  If  he  had  examined 
the  pipes,  and  left  them  in  a  proper  condition,  and  then  caused  the  let- 
ting on  of  the  water,  there  would  have  been  neither  nonfeasance  nor 
misfeasance.  As  the  facts  are,  the  nonfeasance  caused  the  act  done 
to  be  a  misfeasance.  But  from  which  did  the  plaintiff  suffer  ?  Clearly, 
from  the  act  done,  which  was  not  less  a  misfeasance  by  reason  of  it 
being  preceded  by  a  nonfeasance."  Much  more  cogent  and  judicial 
is  the  reasoning  of  the  same  court  many  years  after  in  Osborne  v. 
Morgan,  130  Mass.  102,  39  Am.  Rep.  437,  where  an  agent  of  premises 
was  held  responsible  to  a  third  person  for  suffering  to  remain  sus- 
pended from  a  room  a  tackle  block,  which  fell  upon  and  injured  the 
plaintiff.  The  court,  speaking  through  Chief  Justice  Gray,  said :  "The 
principal  reason  assigned  was  that  no  misfeasance  or  positive  act  of 


SERVANTS   AND   AGENTS  89 

wrong  was  charged,  and  that  for  nonf easance, — which  was  merely  neg- 
ligence in  the  performance  of  a  duty  arising  from  some  express  or  im- 
plied contract  with  his  principal  or  employer, — an  agent  or  servant 
was  responsible  to  him  only,  and  not  to  any  third  person.  It  is  often 
said  in  the  books  that  an  agent  is  responsible  to  third  persons  for  mis- 
feasance only,  and  not  for  nonfeasance.  And  it  is  doubtless  true  that, 
if  an  agent  never  does  anything  towards  carrying  out  his  contract  with 
his  principal,  but  wholly  omits  and  neglects  to  do  so,  the  principal  is 
the  only  person  who  can  maintain  any  action  against  him  for  the  non- 
feasance.  But  if  the  agent  once  actually  undertakes  and  enters  upon 
the  execution  of  a  particular  work,  it  is  his  duty  to  use  reasonable  care 
in  the  manner  of  executing  it,  so  as  not  to  cause  any  injury  to  third 
persons  which  may  be  the  natural  consequence  of  his  acts;  and  he 
cannot,  by  abandoning  its  execution  midway,  and  leaving  things  in  a 
dangerous  condition,  exempt  himself  from  liability  to  any  person  who 
suffers  injury  by  reason  of  his  having  so  left  them  without  proper  safe- 
guards. This  is  not  nonfeasance,  or  doing  nothing;  but  it  is  misfea- 
sance, doing  improperly."  There  is  still  another  class  of  cases  which 
hold  what  seems  to  us  to  be  the  correct  doctrine,  viz.,  that  the  obliga- 
tion, whether  for  misfeasance  or  nonfeasance,  does  not  rest  in  con- 
tract at  all,  but  is  a  common-law  obligation  devolving  upon  every  re- 
sponsible person  to  so  use  that  which  he  controls  as  not  to  injure  an- 
other, whether  he  is  in  the  operation  of  his  own  property  as  principal 
or  hi  the  operation  of  the  property  of  another  as  agent.  One  of  the 
leading  cases  maintaining  this  view  is  Baird  v.  Shipman,  a  case  decided 
in  1890,  and  reported  in  132  111.  16,  23  N.  E.  384,  7  L.  R.  A.  128,  22 
Am.  St.  Rep.  504.  There  it  was  held  that  an  agent  who  has  complete 
control  of  a  house  belonging  to  an  absent  principal,  and  who  lets  the 
house  in  a  dangerous  condition,  promising  to  repair  it,  is  responsible 
to  the  third  person  injured  by  an  accident  caused  by  want  of  such 
repair.  There  is  nothing  to  distinguish  this  case  from  the  case  at  bar 
excepting  the  promise  to  repair,  and  that  does  not  seem  to  have  been 
deemed  by  the  court  an  important  feature;  but  the  case  was  decided 
upon  the  broad  principle  above  announced.  Said  the  court :  "It  is  not 
his  contract  with  the  principal  which  exposes  him  to  or  protects  him 
from  liability  to  third  persons,  but  his  common-law  obligation  to  so 
use  that  which  he  controls  as  not  to  injure  another.  That  obligation 
is  neither  increased  nor  diminished  by  his  entrance  upon  the  duties 
of  agency,  nor  can  its  breach  be  excused  by  the  plea  that  his  principal 
is  chargeable.  If  the  agent  once  actually  undertakes  and  enters  upon 
the  execution  of  a  particular  work,  it  is  his  duty  to  use  reasonable  care 
in  the  manner  of  executing  it,  so  as  not  to  cause  any  injury  to  third 
persons  which  may  be  the  natural  consequence  of  his  acts" — citing  ap- 
provingly Osborne  v.  Morgan,  supra.  *  *  * 

There  is  some  contention  in  respondent's  brief  on  the  alleged  bar- 
renness of  the  allegations  of  the  complaint,  but  we  think  the  allega- 


90  PARTIES 

tions  were  ample  to  show  that  the  respondent  was  authorized  to  keep 
the  building  in  repair ;  that  it  undertook  that  office  or  duty,  and  was 
in  complete  control  of  the  work.  It  is  alleged  that  it  was  in  absolute 
control  and  management,  with  full  power,  authority,  and  direction  to 
repair,  and  to  allege  that  it  agreed  to  do  so  would  only  be  to  allege 
the  agreement  to  do  the  duty  which  the  law  imposed  upon  it  after  it 
had  assumed  the  control  and  management  which  is  alleged. 

Our  conclusion  is  that  the  complaint  states  a  cause  of  action  against 
the  respondent.  The  judgment  is  therefore  reversed,  with  instructions 
to  the  lower  court  to  overrule  the  demurrer  to  the  complaint. 

REAVIS,  C.  J.,  and  ANDERS,  MOUNT,  and  FULI^RTON,  JJ.,  concur. 


PARTIES  91 

PARTIES  (Continued)1 

i 

I.  Corporations 
1.  MUNICIPAL* 

EDDY  v.  VILLAGE  OF  ELLICOTTVILLE. 

(Supreme  Court  of  New  York,  Appellate  Division,  Fourth  Department,  1898. 
35  App.  Div.  256,  54  N.  Y.  Supp.  800.) 

ADAMS,  J.  The  facts  of  this  case,  succinctly  stated,  are  as  follows, 
viz.: 

The  defendant  is  a  municipal  corporation,  created  under  the  provi- 
sions of  the  general  act  of  1870  relative  to  the  incorporation  of  vil- 
lages (chapter  291)  and  the  acts  amendatory  thereof.  In  virtue  of  the 
authority  and  power  conferred  upon  it  by  the  provisions  of  that  act, 
it  is  alleged,  and  not  denied,  that  "the  defendant  kept,  maintained, 
possessed,  and  controlled  a  village  lockup,  situate  on  the  public  square 
in  said  village  of  Ellicottville,  in  which  the  defendant  and  its  police 
officers  regularly  confined,  and  caused  and  suffered  to  be  incarcerated 
and  confined  therein,  persons  who  were  from  time  to  time  arrested 
for  violations  of  the  ordinances  of  said  defendant  and  of  the  criminal 
laws  of  this  state."  It  appears  that  in  the  evening  of  February  17, 
1897,  the  plaintiff's  husband  and  intestate  was  arrested  by  one  of  the 
defendant's  peace  officers  for  intoxication,  and  confined  in  the  lockup 
for  the  entire  night;  that  while  thus  confined  he  contracted  a  severe 
cold,  which  terminated  in  pneumonia,  from  which  disease  he  died  in 
about  one  week  thereafter.  It  further  appears  that  at  the  time  the 
plaintiff's  intestate  was  thus  imprisoned  the  lockup  was,  and  for  a  con- 
siderable period  prior  thereto  had  been,  in  a  dilapidated  condition; 
that  many  of  the  windows  thereof  were  broken;  that  the  room  in 
which  the  intestate  was  confined  was  not  warmed;  that  he  was  conse- 
quently exposed  to  cold  weather  and  draughts,  which  came  in  through 
the  broken  windows,  and  was  compelled  to  pass  the  night  without  any 
suitable  protection  therefrom;  and  that,  as  a  result  of  such  exposure, 
he  contracted  the  disease  which  terminated  his  life. 

The  foregoing  facts  are  all  alleged  in  the  complaint,  and,  inasmuch 
as  the  complaint  was  dismissed  upon  the  opening  of  the  plaintiff's 
counsel,  they  must,  for  the  purposes  of  this  review,  be  accepted  as  the 
truth  of  the  case.  Kennedy  v.  Mayor,  etc.,  73  N.  Y.  365,  29  Am.  Rep. 
169. 

The  main  question,  therefore,  which  we  are  called  upon  to 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  51  (A). 


92  PARTIES 

is  whether,  assuming  these  facts  to  be  true,  they  constitute  a  cause  of 
action  against  this  defendant ;  or,  in  other  words,  whether  the  defend- 
ant, a  municipal  corporation,  is,  in  the  circumstances  of  this  case,  lia- 
ble for  a  negligent  omission  of  duty  which  it  is  admitted  caused  the 
death  of  the  plaintiff's  intestate. 

As  introductory  to  a  consideration  of  this  question,  it  will  be  de- 
sirable, we  think,  to  understand  precisely  what  rights  and  liabilities 
attached  to  the  defendant  when,  availing  itself  of  the  provisions  of  the 
act  of  1870,  it  acquired  corporate  existence.  A  municipality,  although 
a  political  division  of  the  state,  possesses  two  separate  and  distinct 
powers,  one  of  which  may  be  termed  governmental  or  public,  and  the 
other  private  or  corporate.  Hill  v.  City  of  Boston,  122  Mass.  344,  23 
Am.  Rep.  332 ;  Lloyd  v.  City  of  New  York,  5  N.  Y.  369,  55  Am.  Dec. 
347.  In  the  exercise  of  the  first  of  these  powers  the  city  or  village  is 
invested  with  the  quality  of  sovereignty,  while  in  the  exercise  of  the 
second  it  occupies  the  same  relation  to  the  individual  that  any  other 
corporate  body  does.  Obviously,  therefore,  it  is  of  the  first  impor- 
tance that  the  true  line  of  demarkation  between  these  two  powers 
should  be  ascertained,  in  order  that  it  may  be  determined  under  which 
class  or  division  the  present  case  falls,  for,  if  the  duty  of  maintaining 
a  village  lockup  or  jail  in  a  safe  and  healthful  condition  is  a  corporate 
one — that  is,  if  it  is  one  which  falls  within  the  second  definition  of 
municipal  powers — then  clearly  the  defendant  is  liable  in  a  civil  ac- 
tion to  any  individual  who  may  have  suffered  damage  in  consequence 
of  its  omission  to  perform  that  duty;  whereas,  if  the  duty  is  purely 
public  or  governmental  in  its  character,  it  is  equally  clear  that  no  lia- 
bility for  a  like  omission  would  attach.  Reynolds  v.  Board,  33  App. 
Div.  88,  53  N.  Y.  Supp.  75.  The  ascertainment  of  this  dividing  line 
is  a  problem  which  in  many  instances  may  prove  somewhat  difficult  of 
solution,  but,  as  was  said  in  the  case  last  cited,  "when  that  line  is  as- 
certained it  is  not  difficult  to  determine  the  rights  of  the  parties,  for 
the  rules  of  law  are  clear  and  explicit  which  establish  the  rights,  im- 
munities, and  liabilities  of  the  (municipality)  when  in  the  exercise  of 
each  class  of  powers."  It  is  not  contended,  as  we  understand  it,  that 
the  defendant  is  responsible  by  reason  of  any  statutory  requirement 
that  it  shall  keep  the  building  in  question  in  a  safe  and  healthful  con- 
dition, and  it  necessarily  follows  that,  if  any  liability  whatever  attaches 
for  an  omission  of  duty  in  that  regard,  it  is  simply  an  implied  one. 

Now,  the  basis  of  an  implied  municipal  liability  for  negligence  is 
either  an  obligation  which  rests  upon  the  municipality  in  respect  of  its 
special  or  local  interests,  or  else  it  is  one  under  which  it  voluntarily 
assumes  an  undertaking  from  which  it  derives  some  benefit  or  ad- 
vantage, or  for  which  it  expects  to  receive  a  consideration.  Dill.  Mun. 
Corp.  (4th  Ed.)  §§  980,  981.  To  illustrate:  It  was  held,  in  a  very 
early  case,  that  a  municipal  corporation  was  responsible  for  the  neg- 
ligence and  unskillfulness  of  its  agents  and  servants  in  the  construe- 


CORPORATIONS  93 

tion  of  a  dam  on  the  Croton  river;  it  appearing  that  the  dam  was  a 
part  of  the  work  undertaken  pursuant  to  an  act  of  the  legislature  by 
which  the  city  was  supplied  with  water.  Bailey  v.  Mayor,  etc.,  3  Hill, 
531,  38  Am.  Dec.  669;  New  York  v.  Bailey,  2  Denio,  433.  More  re- 
cently such  a  corporation  was  adjudged  liable  to  an  individual  for 
damage  to  his  lands  resulting  from  the  omission  of  the  city  to  keep  its 
sewers  in  a  proper  state  of  repair.  Lloyd  v.  City  of  New  York,  su- 
pra; Barton  v.  City  of  Syracuse,  36  N.  Y.  54.  In  still  another  case, 
where  a  municipal  corporation  was  charged  with  the  duty  of  properly 
maintaining  a  dock,  from  which  presumably  it  derived  some  profit  or 
advantage,  it  was  held  liable  for  damage  to  a  third  party  resulting 
from  a  negligent  omission  of  that  duty.  Kennedy  v.  Mayor,  etc.,  su- 
pra. And  this  court  has  very  recently  held  that  a  county  which  owned 
and  conducted  a  farm  in  connection  with,  and  for  the  benefit  of,  cer- 
tain charitable  and  penal  institutions,  was  liable  to  an  adjoining  owner 
for  injuries  to  his  premises  resulting  from  the  pollution  of  a  stream 
of  water  passing  over  the  same.  Lef  rois  v.  Monroe  Co.,  24  App.  Div. 
421,  48  N.  Y.  Supp.  519.2 

Many  other  like  cases  might  be  cited  which  would  furnish  ample 
illustration  of  the  distinction  which  the  law  makes  between  a  power 
which  is  sovereign  and  one  which  is  simply  corporate.  It  would  seem, 
however,  that  those  to  which  reference  has  already  been  made  demon- 
strate quite  clearly  that  the  maintaining  of  a  village  jail  in  a  safe  and 
healthful  condition  is  an  act  which  does  not  properly  fall  within  the 
second  class  of  municipal  powers,  as  hereinbefore  defined;  and  con- 
sequently it  only  remains  to  be  determined  whether  or  not  such  an  act 
may  be  termed  a  governmental  power. 

Inherently,  as  well  as  by  legislative  enactment,  the  defendant,  as 
one  of  the  political  divisions  of  the  state,  is  invested  with  certain  po- 
lice powers,  by  the  exercise  of  which,  through  its  police  officers,  it  is 
authorized  and  enabled  to  protect  the  lives  and  property  of  its  citizens. 
City  of  Rochester  v.  West,  29  App.  Div.  125,  51  N.  Y. 'Supp.  482. 
Among  the  powers  thus  conferred  is  that  of  arresting  the  violators  of 
the  law,  and  this,  of  course,  includes  the  power  to  imprison;  for  it 
would  be  useless  to  arrest  such  offenders  if  no  place  were  provided  in 
which  to  confine  them  while  undergoing  punishment.  If,  then,  in  the 
exercise  of  this  power,  the  defendant  caused  the  intestate  to  be  ar- 
rested, it  will  hardly  be  contended,  we  assume,  that  the  village  would 
have  been  liable  for  any  injury  which  might  have  resulted  to  such  in- 
testate by  reason  of  the  negligent  or  unskillful  conduct  of  the  officer 
who,  in  the  performance  of  his  duty,  caused  the  arrest  to  be  made. 
And  it  seems  equally  clear  that,  within  well-settled  principles,  no  liabili- 
ty would  have  attached  to  the  village  by  reason  of  the  failure  of  the 
officer  in  charge  of  the  jail  to  provide  the  intestate  with  such  things  as 
were  essential  to  his  health  and  comfort  while  he  was  undergoing  con- 

2  Reversed  on  appeal,  162  N.  Y.  563,  57  N.  E.  185,  50  L.  R.  A.  206  (1900). 


94  PARTIES 

finemu.i  in  that  institution.  Maxmilian  v.  City  of  New  York,  62  N. 
Y.  160,  20  Am.  Rep.  468.  If  this  be  conceded,  as  we  think  it  must  be, 
it  is  difficult  to  assign  any  sufficient  reason  for  holding  the  defendant 
liable  for  its  omission  to  keep  its  jail  or  lockup  in  suitable  ^condition; 
for  this  is  a  duty  which  it  is  called  upon  to  perform  only  in  its  public 
or  governmental  capacity,  and  it  is  also  one  the  performance  of  which 
is,  of  necessity,  committed  to  the  police  officers  of  the  municipality. 
Lorillard  v.  Town  of  Monroe,  11  N.  Y.  392-394,  62  Am.  Dec.  120. 

We  have  been  unable  to  find  any  case  arising  in  this  state  in  which 
the  precise  question  which  is  here  presented  has  received  adjudication, 
and  there  is  much  conflict  of  authority  in  the  decisions  of  other  states 
bearing  upon  that  question.  In  one  case,  quite  similar  in  some  of  its 
features  to  the  one  under  consideration,  the  supreme  court  of  North 
Carolina  held  that  a  municipality  was  liable  for  the  death  of  a  person 
confined  in  the  city  prison,  the  jury  having  found  that  his  death  was 
"accelerated  by  the  noxious  air  of  the  guardhouse"  (Lewis  v.  City  of 
Raleigh,  77  N.  C.  229) ;  and  this  doctrine  was  followed  more  recently 
by  the  same  court  in  another  case  arising  out  of  a  state  of  facts  even 
more  strikingly  like  those  alleged  in  the  complaint  herein  (Shields  v. 
Town  of  Durham,  116  N.  C.  394,  21  S.  E.  402) ;  while  in  Edwards  v. 
Pocahontas  (C.  C.)  47  Fed.  268,  the  court,  after  alluding  to  the  dis- 
tinction between  counties  and  municipal  corporations  proper,  says  that 
if  a  municipality,  having  power  to  maintain  a  jail,  although  not  requir- 
ed to  do  so,  undertakes  to  exercise  the  power,  it  will  be  liable  for  the 
negligent  exercise  of  it  in  keeping  the  jail  in  such  a  filthy  and  unfit 
condition  that  the  health  of  a  prisoner  is  injured  thereby. 

It  seems  to  be  universally  conceded  that  a  county,  by  reason  of  the 
fact  that  it  is  a  political  division  of  the  state,  created  for  convenience, 
is  under  no  liability  in  respect  of  torts,  except  as  the  same  is  imposed 
by  statute;  and  for  the  same  reason  it  is  stated  by  an  eminent  text 
writer:  "Such  organizations -as  townships,  school  districts,  road  dis- 
tricts, and  the  like,  though  possessing  corporate  capacity  and  power 
to  levy  taxes  and  raise  money  for  their  respective  public  purposes, 
have  been  very  generally  considered  not  to  be  liable  in  case,  or  other 
form  of  civil  action,  for  neglect  of  public  duty,  unless  such  liability 
be  created  by  statute."  And  he  adds:  "A  county,  though  it  has 
power  to  erect  and  repair  public  buildings,  and  to  levy  and  collect  a 
tax  for  that  purpose,  is  not  responsible,  in  the  absence  of  a  statute 
making  it  so,  for  injuries  resulting  from  the  unsafe  and  dangerous 
condition  of  county  buildings."  Dill.  Mun.  Corp.  (4th  Ed.)  §  963.  In 
our  opinion,  the  village  of  Ellicottville  is  as  much  a  political  division 
of  the  state  as  is  the  county  in  which  it  is  located;  and,  this  being 
the  case,  no  reason  suggests  itself  to  our  mind  why,  in  circumstances 
like  those  disclosed  by  the  record  in  this  case,  it  should  be  subject  to 
any  other  or  different  rule  of  liability  for  the  omission  of  a  public 


CORPOEATIONS  95 

duty.  That  this  view  of  the  matter  is  not  without  substantial  support 
can  be  readily  demonstrated  by  reference  to  adjudications  which  are 
certainly  entitled  to  as  much  weight  and  consideration  as  those  already 
cited.  In  Blake  v.  City  of  Pontiac,  49  111.  App.  543,  it  was  held  that 
the  keeping  of  a  city  jail  is  an  act  which  the  city  is  empowered  to  do 
only  in  its  public  capacity;  that  the  same  is  within  the  police  power 
of  the  city;  and  that  consequently  the  city  is  not  responsible  for  the 
wrongful  acts  of  its  agents  in  omitting  to  properly  maintain  that  insti- 
tution. In  another  case,  arising  in  the  same  state,  where  it  was  charg- 
ed that  the  defendant  had  created  and  maintained  a  "noisome,  un- 
healthy, and  uncomfortable  prison,"  it  was  said  by  the  court  that 
"while  the  trustees  and  other  officers  might,  by  illegal  and  unwarrant- 
ed exercise  of  power,  render  themselves  individually  liable,  that  would 
not  render  the  town  liable."  Town  of  Odell  v.  Schroeder,  58  111.  353. 
So,  too,  in  the  states  of  West  Virginia,  Minnesota,  and  Kansas,  it  has 
been  held  that  the  duty  and  function  of  keeping  a  jail  are  plainly  and 
properly  governmental  in  character,  and  fall  within  the  rule  that  mu- 
nicipal corporations  are  not  liable  for  acts  done  and  powers  exercised 
in  that  capacity.  Brown's  Adm'r  v.  Town  of  Guyandotte,  34  W.  Va. 
299,  12  S.  E.  707,  11  L.  R.  A.  121;  Gullikson  v.  McDonald,  62  Minn. 
278,  64  N.  W.  812;  La  Clef  v.  City  of  Concordia,  41  Kan.  323,  21 
Pac.  272,  13  Am.  St.  Rep.  285 ;  City  of  New  Kiowa  v.  Craven,  46 
Kan.  114,  26  Pac.  426.  These  cases  are  all  directly  in  point,  and  they 
are  in  perfect  accord  with  the  views  to  which  we  have  given  expres- 
sion, as  well  as  with  the  principle  which  we  are  satisfied  ought  to  be 
applied  to  the  present  case,  and  which,  when  applied,  necessarily  leads 
to  an  affirmance  of  the  judgment  appealed  from. 
Judgment  affirmed,  with  costs.  All  concur. 


2.  CHARITABLE* 


DOWNS  v.  HARPER  HOSPITAL. 

(Supreme  Court  of  Michigan,  1894.     101  Mich.  555,  60  N.  W.  42,  25  L.  R.  A. 
602,  45  Am.  St.  Rep.  427.) 

GRANT,  J.  Plaintiff's  decedent  and  husband  became  insane  from 
disease,  and,  by  advice  of  his  physician,  was  conveyed  to  Harper  Hos- 
pital. He  was  violent,  and  was  confined  in  a  room  in  the  third  story  of 
the  building,  which  was  especially  arranged  for  such  patients,  having 
a  framework  of  iron  over  the  windows.  The  deceased  wrenched  this 
iron  .framework  off,  jumped  from  the  window,  and  was  killed.  Plain- 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §  51  (B.) 


96  PARTIES 

tiff  brings  this  suit  to  recover  damages  for  the  benefit  of  herself  and 
children,  alleging  negligence  on  the  part  of  the  defendant.  Defendant 
is  a  body  corporate  organized  under  Act  No.  242,  Laws  1863,  entitled 
"An  act  for  the  incorporation  of  hospitals  or  asylums  in  cases  where 
valuable  grants  or  emoluments  have  been  made  to  trustees  for  such  pur- 
poses," and,  at  the  time  the  alleged  right  of  action  is  said  to  have  ac- 
crued,-was  engaged  in  maintaining  at  Detroit  the  hospital  commonly 
known  as  "Harper  Hospital."  In  the  declaration  it  is  alleged  that  on 
or  about  January  26,  1890,  Downs  was  ill,  and  was  so  disordered  in 
mind  from  the  effects  of  disease  and  pain  that  he  became  and  was 
temporarily  insane,  violent,  and  dangerous,  so  that  it  became  neces- 
sary to  place  him  under  restraint  and  skillful  medical  treatment  to  pre- 
vent him  from  harming  himself  and  others,  and  to  effect  his  cure; 
that  the  defendant,  at  the  request  of  plaintiff,  and  well  knowing  Downs' 
mental  and  physical  condition,  received  him  into  Harper  Hospital  as 
a  patient,  and,  in  consideration  of  the  payment  of  $2  per  day,  agreed 
to  give  Downs  proper  medical  treatment,  and  to  keep  and  restrain  him 
so  that  he  should  suffer  no  bodily  injury  which  he  might  inflict  upon 
himself,  and  to  have  the  room  in  which  he  was  confined  secure,  with  a 
proper  and  sufficient  guard,  framework,  or  other  suitable  protection 
over  the  window  of  such  room,  and  so  securely  fastened  that  Downs, 
when  confined  in  the  room,  would  not  be  able  to  tear  away  the  frame- 
work or  grating  over  the  window  and  throw  himself  therefrom,  and 
to  keep  him  properly  handcuffed,  so  that  he  could  not  injure  himself 
by  tearing  away  the  framework  or  bars  over  the  window,  or  by  throw- 
ing himself  out  of  the  window,  and  also  to  keep  some  suitable  person 
constantly  in  attendance  upon  him.  It  is  further  alleged  that  the  de- 
fendant, in  disregard  of  its  alleged  duties  and  obligations,  wrongfully, 
carelessly,  and  negligently  failed  to  safely  keep  and  care  for  and  give 
medical  attendance  to  Downs,  and  so  keep  and  restrain  him  that  his 
body  should  suffer  no  injury,  and  his  life  should  be  preserved  from 
injury  which  he  might  produce  by  his  own  conduct  and  actions;  that 
the  defendant  did  not  have  the  room  where  Downs  was  confined  se- 
cure, and  with  a  proper  and  sufficient  guard,  framework,  or  other  suit- 
able protection  over  the  window,  and  so  securely  fastened  that  Downs, 
when  confined  in  the  room,  could  not  tear  away  the  framework  or 
grating  over  the  window,  and  throw  himself  therefrom;  that  the  de- 
fendant did  not  keep  Downs  properly  handcuffed,  so  that  he  could  not 
do  himself  injury  by  tearing  away  the  framework  or  bars  and  throw- 
ing himself  out  of  the  window,  and  did  not  keep  some  suitable  person 
constantly  in  attendance  upon  him.  It  is  further  alleged  that  the  de- 
fendant, well  knowing  Downs'  mental  and  physical  condition,  and  that 
he  was  temporarily  insane,  violent,  and  liable  to  injure  himself  and 
others,  and  to  throw  himself  from  the  window  of  the  room  where  he 
was  confined,  removed  the  handcuffs  from  Downs'  wrists,  placed  him, 


COEPORATIONS  97 

alone  and  unattended,  in  the  padded  room  of  the  hospital,  where  insane 
persons  are  usually  placed,  and  did  not  have  the  grating  or  framework 
over  the  window  of  such  room  properly  constructed  or  properly  se- 
cured and  fastened,  and  that  such  framework  or  grating  was  made 
and  fastened  in  such  an  insecure,  unsafe,  careless,  and  negligent  man- 
ner that  Downs,  while  insane,  pulled  down  the  ironwork  and  grating 
from  the  window,  and  threw  himself  therefrom,  falling  a  distance  of 
about  35  feet  to  the  pavement,  thereby  receiving  such  injuries  as  to 
cause  his  death  on  January  29,  1890.  At  the  conclusion  of  the  evi- 
dence the  court  directed  a  verdict  for  the  defendant,  for  the  reason 
that  the  defendant  was  a  charity  which  could  not  be  made  liable  for 
a  tort. 

The  organization  of  the  defendant  had  its  origin  in  two  deeds — one 
executed  February  3,  1859,  by  Walter  Harper,  and  the  other  by  Ann 
Martin,  March  10th,  the  same  year.  The  lands  therein  described  were 
conveyed  to  seven  prominent  citizens  of  Detroit  in  trust  for  the  found- 
ing of  a  hospital.  The  purpose  was  stated  in  the  deed  by  Mr.  Harper 
to  be  "the  institution,  erection,  and  maintenance  of  a  hospital  in  the 
city  of  Detroit,  or  in  the  immediate  vicinity  thereof,  for  the  succor,  care, 
and  relief  of  such  aged,  sick,  and  poor  persons  who  shall  apply  for  the 
benefit  of  the  same,  and  who  shall  seem  to  my  trustees  hereof  to  be 
proper  subjects  of  such  aid  as  their  means  will  enable  them  to  afford." 
The  particular  scheme  for  founding  the  hospital,  and  all  the  details, 
were  left  to  be  devised  and  controlled  by  the  trustees.  It  also  provided 
for  organizing  and  permanently  maintaining  a  school  for  the  instruc- 
tion of  youth  in  the  different  arts  and  trades,  after  the  manner  of  what 
is  known  in  Prussia  as  the  "Flintenberg  School."  The  deeds  also  pro- 
vided that,  if  the  legislature  should  enact  a  law  enabling  a  corpora- 
tion to  be  formed  for  the  purposes  named  in  them,  the  trustees  might 
convey  all  the  lands  and  funds  to  a  corporation  formed  therefor.  The 
trust  was  accepted  by  the  trustees,  and  under  the  law  above  referred 
to  the  trustees  conveyed  the  property  to  the  defendant,  a  corporation, 
May  17,  1863.  Other  bequests  have  been  made  to  the  defendant  for  the 
same  purpose,  which  in  one  year  amounted  to  over  $100,000.  The  cor- 
porators receive  no  compensation  or  dividends.  It  is  purely  an  elee- 
mosynary institution,  organized  and  maintained  for  no  private  gain,  but 
for  the  proper  care  and  medical  treatment  of  the  sick.  Hospital  phy- 
sicians and  attendants  are,  and  of  course  must  be,  paid.  The  receipts 
have  not  always  been  sufficient  to  meet  ordinary  expenses,  and  one 
year  a  private  citizen  gave  $1,000  towards  the  deficiency.  The  law 
under  which  the  defendant  is  organized  recognizes  it  as  a  charity; 
exempts  its  property  from  taxation;  provides  that  its  funds  shall  be 
used  faithfully  and  exclusively  for  the  purposes  of  its  organization,  and 
that  it  may  receive,  by  gift,  grant,  or  devise,  any  property,  but  only 
for  the  purpose  for  which  it  is  incorporated.  It  has  no  shares,  and 
CnAp.CAS.ToBTS — 7 


98  PARTIES 

is  not  a  stock  corporation.  If  the  contention  of  the  learned  counsel  for 
the  plaintiff  be  true,  it  follows  that  the  charity  or  trust  fund  must  be 
used  to  compensate  injured  parties  for  the  negligence  of  the  trustees, 
or  architects  and  builders,  upon  whose  judgment  reliance  is  placed  as 
to  plans  and  strength  of  materials;  of  physicians  employed  to  treat 
patients;  and  of  nurses  and  attendants.  In  this  way  the  trust  fund 
might  be  entirely  destroyed,  and  diverted  from  the  purpose  for  which 
the  donor  gave  it.  Charitable  bequests  cannot  be  thus  thwarted  by 
negligence  for  which  the  donor  is  in  no  manner  responsible.  If,  in 
the  proper  execution  of  the  trust,  a  trustee  or  an  employe  commits  an 
act  of  negligence,  he  may  be  held  responsible  for  his  negligent  act ;  but 
the  law  jealously  guards  the  charitable  trust  fund,  and  does  not  permit 
it  to  be  frittered  away  by  the  negligent  acts  of  those  employed  in  its 
execution.  The  trustees  of  this  fund  could  not  by  their  own  direct 
act  divert  it  from  the  purpose  for  which  it  was  given,  or  for  which  the 
act  of  the  legislature  authorized  the  title  to  be  vested  in  the  defend- 
ant. It  certainly  follows  that  the  fund  cannot  be1  indirectly  diverted 
by  the  tortious  or  negligent  acts  of  the  managers  of  the  fund,  or  their 
employes,  though  such  acts  result  in  damage  to  an  innocent  beneficiary. 
Those  voluntarily  accepting  the  benefit  of  the  charity  accept  it  upon 
this  condition.* 

The  fact  that  patients  who  are  able  to  pay  are  required  to  do  so  does 
not  deprive  the  defendant  of  its  eleemosynary  character,  nor  permit 
a  recovery  for  damages  on  account  of  the  existence  of  contract  re- 
lations. The  amounts  thus  received  are  not  for  private  gain,  but  con- 
tribute to  the  more  effectual  accomplishment  of  the  purpose  for  which 
the  charity  was  founded.  The  wrongdoer,  in  a  case  of  injury,  but  not 
the  trust  fund,  must  respond  in  damages.  This  proposition  seems  too 
clear  to  require  argument  or  authority.  It  is  not,  however,  inap- 
propriate to  remark  that  better  facilities  for  the  care,  cure,  and  treat- 
ment of  the  sick,  both  of  the  poor,  and  of  those  who  are  able  to  pay,  are 
secured  by  the  establishment  of  hospitals  like  that  of  the  defendant. 
These  facilities  are  increased  by  the  receipt  of  money  from  those  who 
are  able  to  pay  in  whole  or  in  part  for  the  benefits  received.  Several 
hospitals  of  this  character  exist  in  this  state,  founded  by  private  mu- 
nificence. Obviously,  they  would  not  have  been  founded  if  their  donors 
had  known,  or  ever  supposed,  that  their  charitable  purposes  might  be 
thwarted  by  the  verdicts  of  juries  for  the  negligent  acts  of  those  who 
must  necessarily  be  employed  in  the  execution  of  the  charity.  The  fol- 
lowing authorities  appear  to  sustain  the  above  position:  Hospital  v. 
Ross,  12  Clark  &  F.  507;  McDonald  v.  Hospital,  120  Mass.  432,  21 
Am.  Rep.  529;  Gooch  v.  Association,  109  Mass.  558;  Perry  v.  House  of 
Refuge,  63  Md.  20,  52  Am.  Rep.  495 ;  Railway  Co.  v.  Artist,  9  C.  C. 
A.  14,  60  Fed.  365. 

In  what  we  have  said,  we  are  not  to  be  understood  as  intimating  any 


EMPLOYERS  99 

opinion  as  to  whether  there  is  any  liability  of  the  trustees  for  the  al- 
leged defect  in  the  construction  of  the  room  where  the  deceased  was 
confined,  or  of  those  who  were  intrusted  with  his  care  and  treatment. 
This  question  was  not  passed  on  by  the  court  below,  and  we  express 
no  opinion  upon  it.  The  judgment  is  affirmed. 

MONTGOMERY,  J.,  did  not  sit.    The  other  justices  concurred. 


II.  Employers 
1.  FOR  WRONG  OF  SERVANT  OR  AGENT* 

PALMERI  v.  MANHATTAN  RY.  CO. 

(Court  of  Appeals  of  New  York,  1892.     133  N.  Y.  261,  30  N.  E.  1001,  16  L.  R.  A. 
136,  28  Am.  St.  Rep.  632.) 

GRAY,  J.  Quite  recently  we  had  occasion  to  consider  a  case  where 
the  ticket  agent  of  a  railroad  company  directed  the  arrest,  by  police 
officers,  of  a  person  in  the  railroad  station,  whom  he  suspected  of  be- 
ing a  counterfeiter,  and  the  company  was  thereafter  sued  for  false  im- 
prisonment. In  that  case  the  facts  were  briefly  stated,  that  the  ticket 
agent  had  been  notified  by  the  police  authorities  to  watch  for  men  of 
a  certain  description,  suspected  of  passing  counterfeit  bills.  Upon  a 
certain  occasion  two  men  came  into  the  station,  and  one  of  them  tend- 
ered a  bill  in  payment  for  tickets.  The  agent  suspected  them  of  being 
the  counterfeiters  wanted  by  the  police,  and  thought  the  bill  looked 
"queer,"  but  nevertheless  took  it,  and  gave  back  the  change  with  the 
tickets,  saying  nothing  to  them.  He  then  sent  for  a  police  officer,  to 
whom  he  pointed  out  the  men,  who  were  there  on  the  station  platform. 
The  bill  was  subsequently  pronounced  to  be  genuine,  and  the  man  was 
discharged.  We  held  that  the  company  was  not  responsible  in  damages, 
because  the  agent  was  not,  in  what  he  did,  acting  within  the  scope  and 
line  of  his  duty.  His  acts  were  not  such  as  could  be  deemed  to  be  per- 
formed in  the  course  of  his  employment,  or  such  as  were  demanded  for 
the  protection  of  his  employer's  interest,  but  rather  those  of  a  citizen 
desirous  of  aiding  the  police  in  the  detection  and  arrest  of  persons 
suspected  of  being  engaged  in  the  commission  of  a  crime.  His  duty, 
as  the  particular  agent  of  the  company,  was  to  have  refused  to  accept 
and  change  the  bill  tendered  in  payment  for  passage  tickets,  if  he  sup- 
posed it  was  not  genuine ;  and,  when  he  did  accept  it,  his  only  purpose 
could  have  been  to  further  the  efforts  of  the  police  authorities  by  such 
a  step,  and  could  not  possibly  be  considered  as  something  which  his  em- 
ployers or  his  employment  required  of  him.  I  refer  to  the  case  of 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  53  (1). 


100  PARTIES 

Mulligan  v.  Railway  Co.,  129  N.  Y.  506,  29  N.  E.  952,  14  L.  R.  A.  791, 
26  Am.  St.  Rep.  539  (decided  January,  1892).  In  the  present  case, 
however,  the  acts  of  the  ticket  agent  were  of  a  different  character. 
The  plaintiff  purchased  a  ticket  of  the  agent  at  the  elevated  railroad 
station,  and  passed  through  to  take  the  cars,  after  some  altercation 
about  the  amount  of  the  change.  The  ticket  agent  immediately  after- 
wards came  out  upon  the  platform  of  the  station,  charged  her  with  hav- 
ing given  him  a  counterfeit  piece  of  money,  and  demanded  another 
quarter  in  place  of  the  one  given  him.  She  insisted  upon  her  money 
being  genuine,  and  refused  to  give  another  quarter  or  to  hand  back  the 
change.  He  became  angry,  and  called  her  a  counterfeiter  and  a  com- 
mon prostitute.  He  placed  his  hand  upon  her,  and  told  her  not  to  stir 
until  he  had  procured  a  policeman  to  arrest  and  to  search  her.  He  de- 
tained her  in  the  station  for  a  while,  but  let  her  go  when  he  failed  to  get 
an  officer.  This  action  was  then  brought  to  recover  damages  because 
of  injury  sustained  from  the  unlawful  imprisonment,  or  the  restraint 
imposed  upon  the  plaintiff's  person,  accompanied  by  the  slanderous 
words,  publicly  spoken,  concerning  her.  The  jury  believed  her  story, 
and  the  judgment  which  she  has  recovered  the  appellant  seeks  to  avoid 
principally  upon  the  ground  that  the  ticket  agent  was  acting  outside  of 
the  scope  of  his  employment  in  doing  the  acts  complained  of.  The  ap- 
peal must  fail.  This  is  not  like  the  Mulligan  Case.  Here  the  agent 
was  acting  for  his  employers,  and  with  no  other  conceivable  motive; 
losing  his  temper  and  injuring  and  insulting  the  plaintiff  upon  the  oc- 
casion. He  believed  that  plaintiff  had  passed  a  counterfeit  piece  of 
money  upon  him,  and  thus  had  obtained  a  passage  ticket  and  good 
money  in  change.  What  he  did  was  in  the  endeavor  to  protect  and  to 
recover  his  employer's  property ;  and  if,  in  his  conduct,  he  committed 
an  error,  which  was  accompanied  by  insulting  language  and  the  deten- 
tion of  the  person,  the  defendant,  as  his  employer,  is  legally  responsible 
in  an  action  for  damages  for  the  injury.  For  all  the  acts  of  a  servant 
or  agent  which  are  done  in  the  prosecution  of  the  business  intrusted 
to  him  the  carrier  becomes  civilly  liable,  if  its  passengers  or  strangers 
receive  injury  therefrom.  The  good  faith  and  motives  of  the  servant 
are  not  a  defense,  if  the  act  was  unlawful.  Once  the  relation  of  car- 
rier and  passenger  entered  upon,  the  carrier  is  answerable  for  all  con- 
sequences to  the  passenger  of  the  willful  misconduct  or  negligence  of 
the  persons  employed  by  it  in  the  execution  of  the  contract  which  it  has 
undertaken  towards  the  passenger.  This  is  a  reasonable  and  necessary 
rule,  which  has  been  upheld  by  this  court  in  many  cases,  of  which  Weed 
v.  Railroad  Co.,  17  N.  Y.  362,  '72  Am.  Dec.  474;  Hamilton  v.  Railroad 
Co.,  53  N.  Y.  25 ;  Stewart  v.  Railroad  Co.,  90  N.  Y.  588,  43  Am.  Rep. 
185;  and  Dwindle  v.  Railroad  Co.,  120  N.  Y.  117,  24  N.  E.  319,  8 
L.  R.  A.  224,  17  Am.  St.  Rep.  611 — are  sufficient  instances. 

What  materially  distinguishes  the  present  from  the  Mulligan  Case 
is  that  there  the  servant  of  the  company  was  not  acting  for  the  pro- 


EMPLOYEES  101 

tection  of  the  company's  interests,  but  went  quite  outside  of  the  line 
of  his  duty  to  perform  a  supposed  service  to  the  community  by  procur- 
ing the  arrest  of  criminals  whom  he  knew  the  authorities  were  en- 
deavoring to  apprehend.  That  did  not  enter  into  the  transaction  of  his 
employer's  business.  Whereas  here  the  ticket  agent  clearly  was  en- 
gaged about  the  company's  affairs,  but,  in  the  belief  of  the  jury,  unlaw- 
fully detained  the  plaintiff,  and  insulted  her  by  slandering  her  charac- 
ter. It  is  needless  to  consider  the  case  of  Mali  v.  Lord,  39  N.  Y.  381, 
100  Am.  Dec.  448,  so  much  relied  upon  by  the  appellant.  There  is  no 
parallel  between  the  case  of  a  clerk  in  a  store,  who  has  a  person  arrested 
and  searched  upon  suspicion  of  a  theft,  and  whose  general  employ- 
ment could  not  warrant  such  an  act,  and  the  present  case,  of  an  agent 
who  is  considered  to  be  invested  by  the  carrier  with  a  discretion  and  a 
duty  in  matters  of  his  employment,  from  which  an  authority  is  inferable 
to  do  whatever  is  necessary  about  it.  Though  injury  and  insult  are 
acts  in  departure  from  the  authority  conferred  or  implied,  neverthe- 
less, as  they  occur  in  the  course  of  the  employment,  the  master  becomes 
responsible  for  the  wrong  committed.  Judge  Andrews,  in  Rounds  v. 
Railroad  Co.,  64  N.  Y.  129,  21  Am.  Rep.  597,  points  out  the  distinguish- 
ing principle  of  these  cases,  and  refers  to  Mali  v.  Lord  in  the  course  of 
his  opinion. 

The  offer  by  defendant,  upon  plaintiff's  cross-examination,  to  show 
that  she  was  an  habitual  litigant,  was  properly  excluded.  It  had  noth- 
ing to  do  with  the  issue,  and,  if  true,  would  not  prove  her  unworthy  of 
belief,  any  more  than  it  would  follow  from  her  admission  of  its  truth 
that  the  litigations  which  such  a  tendency  had  encouraged  were  not 
upon  meritorious  grounds. 

The  testimony  of  the  witness  Murphy,  a  bystander  upon  the  oc- 
casion, as  to  the  ticket  agent's  conversation  with  him,  I  think,  was  ad- 
missible, as  occurring  simultaneously,  and  as  illustrating  somewhat  the 
transaction ;  but,  even  if  questionable,  the  defendant  appears  to  have 
objected  to  the  testimony  after  it  was  in,  and  obtained  no  ruling  by 
motion  to  strike  out.  When,  subsequently,  upon  it  appearing  to  the 
court  that  the  plaintiff  did  not  hear  the  conversation,  an  objection  to  the 
testimony  continuing  was  considered  proper  by  the  judge,  and  was 
at  once  sustained.  The  judgment  should  be  affirmed,  with  costs.  All 
concur. 


102  PARTIES 


STRANAHAN  BROS.  CATERING  CO.  v.  COIT.8 

(Supreme  Court  of  Ohio,  1896.     55  Ohio  St.  398,  45  N.  E.  634,  4  L.  R.  A. 

[N.  S.]  506.) 

Plaintiff,  a  corporation,  alleged  that  it  was  engaged  in  the  business  of 
bakers,  caterers  and  in  the  manufacture  of  butter,  cheese,  candies  and 
other  confectionery;  that  defendant  had  furnished  to  plaintiff  about 
120,000  pounds  of  milk ;  that  at  the  time  he  brought  the  first  quantity 
he  had  promised  and  agreed  to  bring  nothing  but  milk  of  a  superior 
quality ;  but  he  had  in  fact  furnished  milk  which  was  adulterated  and 
made  foul  by  stale,  filthy  and  impure  water,  knowing  at  the  time  that 
it  was  to  be  mixed  with  other  milk  in  plaintiff's  factory  and  to  be  used 
in  plaintiff's  business ;  that  by  reason  of  said  adulterated  milk  the 
product  of  plaintiff's  factory  was  greatly  lessened  and  damaged  to  the 
damage  of  the  plaintiff  in  the  sum  of  $4,000. 

At  the  trial  defendant  offered  evidence  to  show  that  he  did  not  water 
the  milk  or  know  that  it  had  been  watered,  and  that  he  had  in  his 
employ  one  Ed.  Miller,  who  without  defendant's  knowledge,  for  the 
purpose  of  injuring  defendant,  had  maliciously  watered  the  milk.  The 
plaintiff,  upon  this  question,  requested  the  court  to  charge  the  jury 
as  follows:  "If  the  jury  shall  find  that  the  milk  of  defendant  was 
delivered  at  its  factory  watered,  then  the  defendant  would  be  liable 
for  the  damages  that  necessarily  and  directly  resulted  therefrom,  even 
though  the  defendant  did  not  water  such  milk,  or  authorize  it  to  be 
done,  or  know  the  same  was  or  had  been  watered,  if  the  jury  shall  find 
it  was  watered  by  one  Ed.  Miller,  the  employe  of  defendant."  But 
the  court  refused  to  charge  the  jury  as  requested,  but  did  charge  the  jury 
upon  this  question  as'  follows :  "If  it  appear  to  you  that  the  milk  was 
adulterated  by  Miller  maliciously,  to  injure  Coit,  and  was  without  Coit's 
knowledge  so  delivered  to  the  factory  adulterated,  then  Mr.  Coit  is  not 
liable  to  defendant  for  any  damage  resulting  to  them  from  such  adul- 
terated milk.  Mr.  Coit,  however,  would  remain  liable  for  the  amount 
of  water  delivered,  but  only  because  it  was  not  milk."  No  other  or 
further  charge  upon  this  subject  was  given  to  the  jury,  nor  was  the 
above  charge  in  any  way  modified,  changed,  or  withdrawn,  but  was, 
without  change  or  modification,  given  by  the  court  to  the  jury  as  the 
law  by  which  they  were  to  be  governed  in  arriving  at  a  verdict  in  the 
case. 

Exceptions  to  the  refusal  to  charge  as  requested,  and  to  the  charge 
as  given,  were  duly  entered  by  plaintiff.  Verdict  for  $185,  for  defend- 
ant and  against  plaintiff,  was  rendered,  and  a  judgment  thereon,  and 
for  costs,  entered,  which  was  affirmed  by  the  circuit  court.  The  plain- 
tiff asks  reversal  of  these  judgments. 

o  For  discussion  of  principles,  see  Chapin  on  Torts,  §  53  (2). 


EMPLOYERS  103 

SPEAR,  J.  (after  stating  the  facts).8  The  questions  arising  on  the 
record  are:  (1)  Whether  or  not  Coit  is  liable  for  the  acts  of  Miller 
which  produced  the  injury;  (2)  whether  or  not  the  plaintiff's  dam- 
ages, in  case  the  jury  found  it  sustained  damages,  could  embrace  all 
the  injury  arising  from  the  adulterated  character  of  the  milk  deliver- 
ed ;  (3)  if  not,  whether,  in  any  view,  the  true  rule  is  that,  in  case  the 
jury  found  that  the  milk  was  adulterated  by  Miller  maliciously,  to  in- 
jure Coit,  and  was,  without  Coit's  knowledge,  so  delivered  to  the  fac- 
tory adulterated,  plaintiff  was  entitled  to  a  rebate  for  the  water,  so  that 
Coit  would  be  liable  only  for  the  amount  of  the  water  delivered,  be- 
cause it  was  not  milk.  The  inquiry  involves,  primarily,  a  consideration 
of  the  liability  of  the  master,  although,  reduced  to  its  last  analysis,  it 
is  an  inquiry  as  to  the  proper  rule  of  damages.  Upon  the  face  of  things 
it  is  apparent,  that  the  question  regarded  as  the  controlling  one  is 
whether  or  not  Coit  is  in  any  way  responsible  for  the  acts  of  Mil- 
ler. *  *  * 

It  is  important  to  observe  a  distinction  between  liability  for  the  ma- 
licious acts  of  an  agent  with  respect  to  one  with  whom  the  principal 
holds  contractual  relations, — acts  affecting  the  performance  of  the  con- 
tract,— and  with  respect  to  others  who  may  have  suffered  injury  by  rea- 
son of  the  agent's  torts,  as  a  failure  to  observe  this  distinction  has  re- 
sulted in  apparent  confusion  of  terms  both  in  text-books  and  decisions. 
The  distinction  referred  to  is  made  apparent  in  an  old  English  case.  A 
traveler  employed  a  livery  stable  keeper  to  drive  him  safely  to  his  des- 
tination. The  driver  purposely  and  needlessly,  to  gratify  his  own  per- 
sonal malice,  went  out  of  his  way  to  collide  with  another  carriage,  by 
which  one  riding  therein  was  injured.  The  collision  also  injured  the 
traveler.  The  action  by  the  former  against  the  master  was  predicated 
wholly  on  the  claim  that  he  was  liable  for  the  malicious  act  of  his 
servant,  committed  without  authority,  and  not  in  the  line  of  his  serv- 
ice. An  action  by  the  traveler  would  have  rested  on  the  failure  of  the 
liveryman  to  perform  his  contract.  And,  as  to  the  latter  proposition, 
Prof.  Wharton,  in  his  work  on  Agency  and  Agents  (section  487),  gives 
this  terse  rule :  "Principal  who  contracts  to  do  a  particular  thing  is  lia- 
ble for  agent's  torts  which  prevent  the  performance  of  the  contract." 
One  principle  seems  to  be  well  settled  by  the  later  authorities,  viz.: 
That  if  the  act  of  the  servant  which  has  occasioned  the  mischief  is 
within  the  scope  of  the  employment,  the  fact  that  it  was  maliciously 
done  does  not  affect  the  question  of  the  master's  liability  under  a  proper 
rule  of  damages. 

Coming,  now,  to  the  case  at  bar  were  the  acts  of  Miller,  which  caused 
the  injury,  in  law  the  acts  of  his  employer?  That  is,  were  they 
within  the  scope  of  his  duties,  or  were  they  outside  and  beyond  ?  And 
here  we  must  not  mistake  the  acts  which  caused  the  damage.  At  first 

e  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  of  Spear,  J., 
and  all  of  the  dissenting  opinion  of  Bradbury,  J.,  are  omitted. 


104  PARTIES 

blush  it  might  seem  that  these  acts  were  the  watering  of  the  milk,  and 
those  were  not  within  any  authority  from  the  master.  But  not  so.  The 
putting  of  the  water  in  the  milk  would  have  been  quite  innocuous,  so 
far  as  plaintiff  is  concerned,  had  the  compound  not  been  delivered  to 
the  factory.  It  was  the  delivery  there  which  produced  the  harm.  In 
those  acts  of  delivery  Miller  stood  for  and  represented  his  master. 
Clearly,  those  deliveries  were  done  in  the  course  of  his  employment, 
"in  the  execution  of  the  service  for  which  he  was  engaged  by  the  mas- 
ter." Under  such  conditions,  why  should  the  master  not  be  liable?  He 
had  contracted  to  deliver  pure  milk,  and,  in  trusting  that  duty  to  his 
servant,  why  had  he  not,  applying  the  principle  announced  by  Judge 
Story,  held  out  that  servant  as  fit  to  be  trusted,  and  warranted  his  fidel- 
ity and  good  conduct  in  all  matters  connected  with  the  performance 
of  that  contract?  Why,  in  reason,  should  the  loss  occasioned  by  the  ras- 
cality of  the  defendant's  servant  be  thrown  on  the  plaintiff?  The  lat- 
ter had  no  voice  in  his  selection ;  no  control  over  his  conduct.  Does 
the  servant's  motive  change  the  nature  of  the  damages  ?  Does  it  make 
the  failure  of  the  defendant  to  perform  his  contract  any  the  less  ob- 
vious, or  any  the  less  serious  in  results?  As  remarked  by  White,  J., 
in  Railroad  Co.  v.  Young,  21  Ohio  St.  524,  8  Am.  Rep.  78:  "Where  a 
person  is  injured  by  the  acts  of  a  servant,  done  in  the  course  of  his 
employment,  we  see  no  good  reason  why  the  motive  or  intention  of 
the  servant  should  operate  to  discharge  the  master  from  liability.  If 
the  nature  of  the  injurious  act  is  such  as  to  make  the  master  liable  for 
its  consequences,  in  the  absence  of  the  particular  intention,  it  is  not 
perceived  how  the  presence  of  such  intention  can  be  held  to  excuse  the 
master."  And  would  any  intelligent  legal  mind  suppose  for  a  moment 
that,  the  alleged  contract  being  found,  if  the  delivery  of  the  objec- 
tionable compound  at  the  factory  had  been  through  the  mere  negligence 
of  the 'servant,  the  defendant  would  not  be  liable?  Surely  not.  Nor 
does  the  enforcement  of  the  rule  of  damages  hereinbefore  indicated  in- 
volve punishment  of  one  for  the  malicious  act  of  another.  If  it  were 
proposed  to  inflict  punitive  damages  on  the  master  where  he  is  innocent 
of  wrong  intent,  then  that  inequitable  result  would  follow.  But  so  long 
as  compensation,  and  compensation  only,  is  the  rule,  the  motive  of  the 
servant  not  entering  into  the  case  one  way  or  the  other,  the  master  is 
not  held  for  the  motive ;  he  is  held  only  for  the  act  So,  in  this  case, 
if  the  testimony  of  the  plaintiff  tended  to  prove  that  Coit  knew  of  the 
condition  of  the  milk  at  the  time  of  the  delivery,  as  the  record  would 
imply,  then  proof  to  the  contrary  was  competent,  but  for  the  purpose 
only  of  excluding  a  right  to  recover  punitive  damages. 

This  contract  involved  reciprocal  duties,  and  gave  corresponding  le- 
gal rights.  The  defendant  was  to  deliver  pure  milk ;  the  plaintiff  was 
to  pay  good  money.  Now,  suppose,  instead  of  this  action,  there  were 
a  suit  of  the  defendant  against  the  plaintiff  for  his  season's  milk, 
$1,150,  and  the  company,  had  pleaded  payment.  At  the  trial  it  appeared 


EMPLOYERS  105 

that,  on  the  day  the  account  was  due  the  company  had  given  the  money 
to  one  of  its  employes,  with  directions  to  go  to  the  vendor  and  pay  for 
the  milk,  and  he  had  gone  to  the  residence  of  the  vendor  and  counted 
out,  as  the  vendor  supposed,  $1,150,  and  taken  a  receipt  to  the  com- 
pany. The  next  day,  when  a  deposit  in  bank  was  attempted,  it  was 
found  that  a  portion  of  the  money  was  counterfeit.  Suppose  the  testi- 
mony to  further  show  that  the  employe,  out  of  malice  towards  the 
company  and  greed  in  his  own  interest,  had  substituted  counterfeit 
money  and  paid  that.  Would  the  company  have  a  defense  ?  The  bills 
paid  looked  like  good  currency,  as  the  milk  delivered  looked  like  pure 
milk.  In  fact  both  were  tainted.  Is  there  any  real  difference  in  the 
two  cases  ?  Is  it  not  a  failure  to  perform  a  contract  in  both  ?  True,  the 
method  of  making  proof  of  damages  is  different;  it  is  simple  in  one 
case,  and  much  less  so  in  the  other.  But,  when  arrived  at,  the  result 
is  precisely  the  same.  It  is  compensation  in  both  cases, — the  making 
of  the  injured  party  whole.  Our  case  is  essentially  dissimilar  from 
that  of  Railroad  Co.  v.  Wetmore,  19  Ohio  St.  110,  2  Am.  Rep.  373, 
where  the  defendant  was  exonerated.  If  Miller  had  got  into  a  quarrel 
with  the  manager  of  the  factory,  about  the  delivery  of  milk,  for  in- 
stance, and,  to  gratify  his  own  personal  resentment,  had  lashed  the 
other  with  the  defendant's  whip,  which  had  been  furnished  him  to 
drive  the  horses  with,  we  would  have  had  a  case  parallel  with  the  one 
above  cited.  The  view  here  indicated  finds  support  in  the  broad  prin- 
ciple that  where  one  of  two  innocent  persons  must  suffer  he  must  be 
the  sufferer  who  puts  it  in  the  power  of  the  wrongdoer  to  cause  the 
loss.  "He,  certainly,  who  trusts  most,  must  suffer  most."  He  through 
whose  agency  the  loss  occurred  must  sustain  it.  It  is  a  principle  found- 
ed on  the  highest  considerations  of  justice  and  expediency.  The  rule 
is  elucidated  in  the  opinion  by  Minshall,  J.,  in  the  recent  case  of 
Schurtz  v.  Colvin,  55  Ohio  St.  274,  45  N.  E.  527,  and  special  reference 
is  here  made  to  that  opinion  for  argument  and  illustrations.  '  See,  also, 
Quick  v.  Milligan,  108  Ind.  419,  9  N.  E.  392,  58  Am.  Rep.  49;  Blight 
v.  Schenck,  10  Pa.  293,  51  Am.  Dec.  478;  Le  Neve  v.  Le  Neve,  3  Atk. 
646.  If  the  foregoing  conclusions  are  correct,  it  follows  that  the  in- 
structions given  the  jury  did  not  cover  the  case  before  them.  The  case 
made  was  the  case  which,  within  the  allegations  of  the  petition,  the 
evidence  tended  to  prove.  The  vital  points  were  the  agreement  to  de- 
liver pure  milk,  the  delivery  under  it,  the  character  of  the  milk  de- 
livered, and  the  resulting  damage ;  and  the  questions  the  jury  needed 
instructions  upon,  in  case  they  found  for  the  plaintiff  on  these  proposi- 
tions, were,  the  liability  or  nonliability  of  Coit,  and  the  measure  of  dam- 
ages in  case  he  was  to  be  held.  The  instruction  given  was  if  the  adul- 
teration was  done  by  Miller  maliciously,  to  injure  Coit,  and  the  delivery 
of  the  adulterated  article  was  without  Coit's  knowledge,  he  was  not  lia- 
ble for  any  damage;  which  if  we  are  right  in  the  principles  of  law 
applicable  to  the  case,  was  erroneous.  The  court  also  added  that  Coit 


106  PARTIES 

would  remain  liable  for  the  amount  of  water  delivered,  because  it  was 
not  milk.  This  means,  we  suppose,  that,  on  Coit's  cross-petition,  he 
would  not  be  allowed  to  recover  pay  for  water.  Of  course  he  could 
not,  but  this  instruction  ignores  any  duty  to  deliver  milk  not  adulterated, 
and  would  be  proper  in  a  case  where  the  quantity  delivered  was  the 
only  question  involved.  But  here  was  involved  the  question  of  dam- 
ages for  the  impaired  character  of  the  article  delivered,  and  it  is  diffi- 
cult to  see  how,  upon  the  view  most  favorable  to  Coit,  the  rule  would 
not  have  been  the  ordinary  commercial  rule,  viz.  the  difference  between 
the  value  of  the  milk  delivered  and  what  its  value  would  have  been 
had  no  water  been  mixed  with  it.  Swan's  Treatise  (14th  Ed.)  784; 
American  note  to  Benj.  Sales  (6th  Ed.)  906.  *  *  * 


2.  FOR  WRONG  OF  INDEPENDENT  CONTRACTOR  T 


ATLANTA  &  F.  R.  CO.  v.  KIMBERLY. 

(Supreme  Court  of  Georgia,  1891.    87  Ga.  161,  13  S.  E.  277,  27  Am.  St. 

Rep.  231.) 

SIMMONS,  J.8  Kimberly  sued  the  railroad  company  for  damages, 
and  alleged  in  his  declaration  "that  while  the  company  was  construct- 
ing its  road  it  made  a  deep  cut,  and  piled  the  fresh  earth  therefrom 
near  his  dwelling  house,  and  dammed  up  a  small  stream,  and  ponded 
the  water  therefrom  near  the  house;  and  that  it  also  stationed  near 
the  house  a  camp  of  convicts,  whom  it  was  using  in  said  construction, 
and  permitted  the  filth  accumulating  in  the  sinks  of  this  camp  and  oth- 
erwise therein  from  the  convicts  to  flow  from  the  camp,  and  be  de- 
posited a  few  yards  from  the  house,  by  reason  of  which  the  air  in  and 
around  the  house  became  infected  with  noxious  scents,  malaria,  and 
other  substances  injurious  to  health,  whereby  plaintiff  and  his  wife  both 
became  sick,  and  endured  great  pain  and  suffering,  and  were  unable 
to  attend  to  their  daily  duties,"  etc.  The  defense  of  the  railroad  com- 
pany was  that  it  did  not  do  the  acts  complained  of  in  the  declaration ; 
that,  if  they  were  done  at  all,  they  were  done  by  the  Chattahoochee 
Brick  Company,  an  independent  contractor,  which  it  had  employed  to 
build  the  railroad  from  Atlanta  to  Senoia.  On  the  trial  of  the  case  the 
jury  found  a  verdict  for  the  plaintiff,  and  the  defendant  made  a  motion 
for  a  new  trial  on  the  various  grounds  set  out  therein,  which  was  over- 
ruled, and  it  excepted. 

The  main  question  argued  before  us  was  whether  under  the  facts  of 
this  case  the  railroad  company  was  liable  for  the  damages  sustained 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  54. 
s  Portions  of  the  opinion  are  omitted. 


EMPLOYERS  107 

by  Kimberly.  The  general  rule  of  law  upon  this  subject  is:  Where 
an  individual  or  corporation  contracts  with  another  individual  or  cor- 
poration exercising  an  independent  employment  for  the  latter  to  do  a 
work  not  in  itself  unlawful  or  attended  with  danger  to  others,  such 
work  to  be  done  according  to  the  contractor's  own  methods,  and  not 
subject  to  the  employer's  control  or  orders  except  as  to  the  results 
to  be  obtained,  the  employer  is  not  liable  for  the  wrongful  or  negligent 
ajcts  of  the  contractor  or  of  the  contractor's  servants.  Code,  §  2962 ; 
Harrison  v.  Kiser,  79  Ga.  588,  4  S.  E.  320.  And  see  the  following  text- 
books and  cases  therein  cited :  1  Lawson,  Rights,  Rem.  &  Pr.  §  295 ;  2 
Thomp.  Neg.  899  et  seq. ;  Id.  909-913 ;  2  Wood,  Ry.  Law,  §  284.  Also, 
1  Add.  Torts,  302;  Cooley,  Torts,  644;  Bish.  Non-Cont.  Law,  § 
606;  Pierce,  R.  R.  286-291;  1  Rorer,  R.  R.  468-470;  Whit.  Smith, 
Neg.  171  et  seq. ;  Wood,  Nuis.  77,  p.  81 ;  Dicey,  Parties  (2d  Amer. 
Ed.)  468  et  seq.  See  especially  the  following  cases :  Peachey  v.  Row- 
land, 22  Law  ].  C.  P.  81,  13  C.  B.  182 ;  Cuff  v.  Railroad  Co.,  35  N.  J. 
Law,  17,  10  Am.  Rep.  205 ;  Clark  v.  Railroad,  39  Mo.  184,  90  Am.  Dec. 
458;  .McCafferty  v.  Railroad  Co.,  61  N.  Y.  178,  19  Am.  Rep.  267; 
Hughes  v.  Railway  Co.,  15  Amer.  &  Eng.  R.  Cas.  100;  Hilliard  v. 
Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743 ;  Eaton  v.  Railway 
Co.,  59  Me.  520,  8  Am.  Rep.  430;  Railway  Co.  v.  Farver,  111  Ind.  195, 
12  N.  E.  296,  60  Am.  Rep.  696 ;  Railway  Co.  v.  Fitzsimmons,  18  Kan. 
34;  Painter  v.  Pittsburgh,  46  Pa.  220. 

To  the  general  rule  there  are  several  exceptions:  (1)  Where  the 
work  is  wrongful  in  itself,  or,  if  done  in  the  ordinary  manner,  would 
result  in  a  nuisance,  the  employer  will  be  liable  for  injury  resulting 
to  third  persons,  although  the  work  is  done  by  an  independent  contrac- 
tor. This  is  upon  the  principle  that  if  one  contracts  with  another  to 
commit  a  nuisance,  he  is  a  cotrespasser  by  reason  of  his  directing  or 
participating  in  the  work ;  in  other  words,  the  rule  is  that,  "if  the  act 
or  neglect  which  produces  the  injury  is  purely  collateral  to  the  work 
contracted  to  be  done,  and  entirely  the  result  of  the  wrongful  acts  of 
the  contractor  and  his  workman,  the  proprietor  is  not  liable;  but  if 
the  injury  directly  results  from  the  work  which  the  contractor  engaged 
and  was  authorized  to  do,  he  is  equally  liable  with  the  contractor."  2 
Thomp.  Neg.  903.  See,  also,  authorities  cited  supra.  (2)  If,  according 
to  previous  knowledge  and  experience,  the  work  to  be  done  is  in  its 
nature  dangerous  to  others,  however  carefully  performed,  the  employer 
will  be  liable,  and  not  the  contractor,  because,  it  is  said,  it  is  incumbent 
on  him  to  foresee  such  danger,  and  take  precautions,  against  it;  and 
this  is  the  principle  upon  which  the  cases  of  Bower  v.  Peate,  1  Q.  B. 
Div.  321;  Tarry  v.  Ashton,  Id.  314;  and  Pickard  v.  Smith,  10  C.  B. 
(N.  S.)  470 — relied  on  by  the  defendant  in  error,  were  decided.  And 
in  this  exception  is  included  the  principle  that  where  the  injury  is  caus- 
ed by  defective  construction  which  was  inherent  in  the  original  plan 
of  the  employer,  the  latter  is  liable.  See  authorities  cited  supra ;  also 
Robbins  v.  Chicago,  4  Wall.  657,  18  L.  Ed.  427 ;  Boswell  v.  Laird,  8 


108  PARTIES 

Cal.  469,  68  Am.  Dec.  345 ;  Lancaster  v.  Insurance  Co.,  92  Mo.  460, 
5  S.  W.  23,  1  Am.  St.  Rep.  739.  For  instance,  if  any  person  employs 
another  to  erect  a  building,  and  the  plan  of  the  building  is  defective, 
the  walls  being  too  thin  and  weak,  and  the  building  while  in  process 
of  erection  falls,  and  causes  injury  to  a  third  person,  the  employer,  and 
not  the  contractor,  is  liable.  Or,  if  a  contractor  is  employed  to  build 
a  sewer,  and  the  employer  agrees  to  furnish  the  materials,  and  the  sewer- 
pipe  furnished  by  the  employer  is  too  small,  and  damage  is  sustained 
by  reason  thereof,  the  employer  is  liable.  (3)  The  next  exception  is 
where  the  wrongful  act  is  the  violation  of  a  duty  imposed  by  express 
contract  upon  the  employer ;  for  where  a  person  contracts  to  do  a  cer- 
tain thing  he  cannot  evade  liability  by  employing  another  to  do  that 
which  he  has  agreed  to  perform.  For  instance,  where  a  company  un- 
dertook to  lay  waterpipes  in  a  city,  agreeing  with  the  city  that  it  would 
"protect  all  persons  against  damages  by  reason  of  excavations  made 
by  them  in  laying  pipes,  and  to  be  responsible  for  all  damages  which 
might  occur  by  reason  of  the  neglect  of  their  employes  in  the  premises," 
and  the  company  let  out  the  work  to  a  contractor,  who  used  a  steam- 
drill  in  such  a  manner  as  to  frighten  a  traveler's  horse  and  injure  the 
traveler,  it  was  held  by  the  supreme  court  of  the  United  States  that  the 
company  was  liable.  Water  Co.  v.  Ware,  16  Wall.  566,  21  L.  Ed.  485. 
(4)  The  next  exception  is  where  a  duty  is-  imposed  by  statute.  The  per- 
son upon  whom  a  statutory  obligation  is  imposed  is  liable  for  any  injury 
that  arises  to  others  from  its  nonperformance  or  in  consequence  of  its 
having  been  negligently  performed,  either  by  himself  or  by  a  contractor 
employed  by  him.  Thus,  where  the  statute  imposed  upon  a  railroad 
company,  as  a  duty  to  the  proprietors  of  inclosures  through  which  the 
road  passed,  the  obligation  of  placing  stockguards,  and  preserving  or 
supplying  fences,  on  the  right  of  way,  and  protecting  the  inclosure  from 
injury,  in  the  construction  of  its  road,  the  company  was  held  liable  for 
the  failure  to  perform  such  duty,  though  resulting  from  the  negligence 
of  a  contractor.  Railroad  Co.  v.  Meador,  50  Tex.  77.  And  it  was  up- 
on this  principle  that  the  cases  of  Wilson  v.  White,  71  Ga.  506,  51  Am. 
Rep.  269;  Gray  v.  Pullen,  5  Best  &  S.  970;  Hole  v.  Railroad  Co.,  6 
Hurl.  &  N.  488;  and  Railroad  Co.  v.  McCarthy,  20  111.  388,  71  Am. 
Dec.  285 — relied  upon  by  counsel  for  the  defendant  in  error,  were  de- 
cided. And  the  case  of  Hinde  v.  Navigation  Co.,  15  111.  72,  also  relied 
upon  for  the  defendant  in  error,  falls  under  the  same  principle.  In 
that  case  the  charter  imposed  upon  the  company  the  duty  of  paying  for 
all  material  taken  for  the  use  of  its  work,  and  expressly  gave  a  remedy 
against  the  company;  and  it  was  held  that  the  company  could  not  by 
delegating  its  work  to  a  contractor  escape  liability  for  material  taken 
by  him  for  the  work ;  especially  as  he  was  working  under  the  immedi- 
ate supervision  and  direction  of  the  engineer  of  the  company.  (5)  The 
employer  may  also  make  himself  liable  "by  retaining  the  right  to  di- 
rect and  control  the  time  and  manner  of  executing  the  work,  or  by  in- 
terfering with  the  contractor  and  assuming  control  of  the  work,  or 


EMPLOYERS  109 

some  part  of  it,  so  that  the  relation  of  master  and  servant  arises,  or 
so  that  an  injury  ensues  which  is  traceable  to  his  interference.  But 
merely  taking  steps  to  see  that  the  contractor  carries  out  his  agreement, 
as  having  the  work  supervised  by  an  architect  or  superintendent,  does 
not  make  the  employer  liable;  nor  does  reserving  the  right  to  dismiss 
incompetent  workmen."  1  Lawson,  Rights,  Rem.  &  Pr.  299 ;  Harrison 
v.  Kiser,  supra.  (6)  The  employer  may  also  be  held  liable  upon  the 
ground  that  he  has  ratified  or  adopted  the  unauthorized  wrong  of  the 
independent  contractor.  See  Harrison  v.  Kiser,  supra ;  2  Thomp.  Neg. 
903,  915. 

Applying  the  foregoing  principles  to  the  facts  of  this  case,  we  find 
that  the  railroad  company  made  a  contract  with  the  Chattahoochee 
Brick  Company,  whereby  the  latter  agreed  to  build  the  former's  road 
from  Atlanta  to  Senoia,  according  to  certain  specifications;  and  the 
railroad  company  did  not  retain  any  control  over  the  contractor  as  to 
the  method  or  manner  of  doing  the  work.  The  construction  company 
was  to  furnish  the  labor  and  all  the  materials,  including  the  pipes  with 
which  the  sewers  or  culverts  were  to  be  built.  All  the  control  reserved 
by  the  road  was  that  its  superintendent  was  to  see  that  the  road  was 
built  according  to  the  contract.  There  is  no  indication  in  the  record 
outside  of  some  loose  and  illegal  declarations  of  third  parties,  the  ad- 
mission of  which  as  evidence  we  will  speak  of  presently,  tending  to 
show  that  the  railroad  company  had  any  authority,  power,  or  control 
over  the  construction,  as  to  the  manner  or  means  of  doing  the  work. 
This  being  true,  the  railroad  company,  under  the  general  rule  above 
announced,  is  not  liable  for  the  negligent  acts  done  by  the  contractor. 
It  was  argued  by  the  able  counsel  for  the  defendant  in  error  that  the 
building  of  a  railroad  necessarily  results  in  a  nuisance,  unless  certain 
precautions  are  taken  to  prevent  it;  that  the  low  places  by  which  the 
surrounding  lands  are  drained  and  from  which  the  water  is  carried 
off  must  be  filled  up,  and,  unless  certain  precautions  are  taken  to  pro- 
vide an  escape  for  the  water,  a  nuisance  necessarily  results ;  and  that 
the  railroad  company  cannot  escape  liability  by  having  the  work  done 
by  an  independent  contractor.  If  the  premises  of  counsel  are  true,  the 
conclusion  might  also  be  true ;  but  if  a  railroad  is  built  properly  we  do 
not  think  any  nuisance  will  result  from  the  building.  *  *  * 

Nor  is  there  any  legal  evidence  to  show  that  it  would  fall  within 
the  second  exception.  It  is  claimed  that  the  pond  of  water  was  caused 
by  the  sewer  pipes  being  too  small  to  carry  it  off,  but  there  is  no  evi- 
dence that  the  railroad  company  directed  that  this  particular  size  of 
pipe  should  be  placed  at  that  point.  It  is  true  there  are  some  declara- 
tions of  Hammond  and  English  to  the  effect  that  the  superintendent  or- 
dered it  to  be  put  there,  but  these  declarations  were  illegal,  and  should 
have  been  excluded.  If  it  should  be  shown  upon  the  next  trial  that 
this  particular  size  of  pipe  was  placed  at  that  point  by  direction  of 
the  company,  or  if  the  specifications  in  the  contract  required  it  to  be 
placed  there,  and  it  should  be  further  shown  that  this  part  of  the  plan 


110  PARTIES 

was  inherently  defective,  and  that  it  caused  this  nuisance,  and  the  plain- 
tiff sustained  injury  thereby,  the  railroad  company  would  be  liable. 
But  if  the  railroad  company  did  not  direct  this  particular  size  of  pipe 
to  be  placed  at  that  point,  or  its  plans  and  specifications  did  not  require 
it,  and  it  was  put  there  by  the  contractor  according  to  his  own  judg- 
ment, and  negligently  placed  above  the  bed  of  the  stream,  then  the  rail- 
road company  would  not  be  liable,  although  it  may  have  had  notice 
from  the  plaintiff  that  in  his  opinion  the  pipe  was  too  small.  If  the 
railroad  company  had  no  control  over  the  contractor  as  to  the  manner 
in  which  he  should  build  the  sewer  or  put  in  the  pipe,  any  notice  which 
the  plaintiff  might  give  its  officers  would  not  make  it  liable.  The  con- 
tractor being  in  an  independent  employment,  whatever  he  does  outside 
of  or  beyond  his  contract  is  a  collateral  act  for  which  the  employer  is 
not  liable.  He  is  not  the  servant  or  agent  of  the  employer,  and  the  em- 
ployer cannot  be  held  liable  for  any  acts  of  negligence  committed  or 
omitted  by  him  outside  of  his  contract.  Where  the  work  he  is  engaged 
to  do  is  lawful,  the  law  presumes  that  he  will  do  it' in  a  lawful  manner; 
and  if  he  does  it  illegally  he  is  liable  and  not  the  employer. 

Nor  do  the  facts  of  the  case  bring  it  within  the  third  or  the  fourth 
exceptions.  There  was  no  duty  imposed  upon  the  railroad  company, 
either  by  contract,  or  by  statute,  to  do  this  particular  work,  or  to  da 
it  in  a  particular  way.  Its  charter  does  not  impose  upon  it  the  duty  of 
building  the  road,  and  does  not  specify  the  manner  in  which  it  shall 
be  built ;  nor  is  any  liability  imposed  upon  it  for  acts  of  the  kind  com- 
plained of  in  this  case.  The  authorities  all  hold  that  a  railroad  com- 
pany has  the  right  to  make  a  contract  with  other  parties  for  the  con- 
struction of  its  road,  and  it  is  held  that  a  contract  of  this  character 
is  not  such  a  delegation  of  its  chartered  rights  as  to  render  the  com- 
pany liable  for  unauthorized  wrongs  committed  by  the  contractor  or 
his  servants  while  engaged  in  the  work.  *  *  * 

As  we  have  already  seen,  the  case  does  not  come  within  the  fifth 
exception,  for  there  is  no  legal  evidence  that  the  railroad  company  had 
any  control  over  the  construction,  as  to  the  manner  or  means  of  doing 
the  work.  Nor  does  it  come  within  the  next  exception,  for  the  facts 
do  not  show  any  ratification  of  the  wrongful  acts  of  the  contractor.  It 
is  not  shown  when  the  company  accepted  the  road  from  the  contractor. 
The  evidence  does  show  that  the  work  near  the  plaintiff's  house  was 
done  either  in  March,  April,  or  May,  and  that  about  the  1st  of  June 
the  plaintiff  and  his  wife  became  sick.  But  under  the  contract  the 
road  was  not  to  be  turned  over  to  the  company  until  several  months 
after  this.  The  company  not  being  in  possession  of  the  road  at  the 
time  the  plaintiff  received  the  injury  from  the  nuisance,  and  there  be- 
ing no  evidence  to  show  that  it  knew  there  was  a  nuisance,  it  cannot  be 
said  that  the  company  ratified  any  act  of  its  contractor  which  created 
a  nuisance.  *  *  * 


JOINT  AND  SEVERAL  LIABILITY  HI 

III.  Joint  and  Several  Liability 
1.  SINGLE  INJURY  • 


SLATER  v.  MERSEREAU. 

(Court  of  Appeals  of  New  York,  1876.    64  N.  Y.  138.) 

This  action  was  brought  to  recover  damages  for  injuries  alleged 
to  have  resulted  from  defendant's  negligence.  The  referee  found  sub- 
stantially that  plaintiffs  were  lessees  and  occupants  of  the  first  floor  and 
basement  of  certain  premises  in  the  city  of  New  York ;  that  defendant 
on  or  about  April  8,  1864,  had  entered  into  a  contract  with  the  owners 
of  lots  adjoining  the  premises  occupied  by  plaintiffs  by  which  defend- 
ant agreed  to  erect  and  finish  a  new  building  on  said  lots ;  that  defend- 
ant entered  upon  the  performance  of  the  contract  and  subcontracted  a 
portion  of  the  work  to  Moore  &  Bryant,  the  latter  agreeing  to  furnish 
the  materials  and  do  the  mason  work,  also  with  McKensie  &  Co.,  the 
latter  to  furnish  the  materials  for  and  complete  the  plumber's  work 
and  gas  fitting,  which  included  the  putting  up  of  a  leader  from  the  roof 
to  the  sewer  in  the  street;  that  defendant  reserved  to  himself  and 
.performed  the  carpenter's  work,  including  the  rafters  and  planking; 
of  the  roof;  that  on  or  about  July  21,  1868,  defendant  had  completed 
all  the  carpenter  work  of  the  roof,  and  the  plumbers  had  constructed 
a  pipe  connected  with  the  roof  which  was  carried  some  distance  down 
the  wall  of  the  building  and  which  it  was  intended  to  connect  with 
the  sewer  by  a  continuation  of  the  pipe ;  that  the  pipe  could  not  be 
continued  until  the  wall  down  which  it  was  carried  was  cut  to  ac- 
commodate it;  that  defendant  had  failed  to  direct  Moore  &  Bryant 
to  make  the  necessary  cuttings  in  the  wall  and  omitted  to  provide  any 
means  for  carrying  off  the  rainwater;  that  large  quantities  of  rain- 
water which  had  fallen  upon  the  roof  ran  into  the  cellar  and  soaked 
through  into  the  plaintiff's  premises ;  that  Moore  &  Bryant  had  erect- 
ed the  vault  and  sidewalks  in  such  a  negligent  manner  as  to  permit 
large  quantities  of  rain  water  to  flow  from  the  street  which  united  with 
that  from  the  roof  and  soaked  through  into  plaintiff's  premises  injur- 
ing their  stock  of  goods. 

MILLER,  J.10  *  *  *  The  defendant,  not  being  liable  for  the  neg- 
ligence of  Moore  &  Bryant,  as  subcontractors,  could  he  be  liable  for  the 
damages  which  followed,  upon  the  ground  stated  by  the  referee  in  his 
report.  It  is  true  that  the  defendant  and  Moore  &  Bryant  were  not 
jointly  interested  in  reference  to  the  separate  acts  which  produced  the 

9  For  discussion  of  general  principles,  see  Chapin  on  Torts,  §  57  (C). 

10  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  omitted. 


112  PARTIES 

damages.  Although  they  acted  independently  of  each  other,  they  did 
act  at  the  same  time  in  causing  the  damages,  etc.,  each  contributing  to- 
wards it,  and  although  the  act  of  each,  alone  and  of  itself  might  not 
have  caused  the  entire  injury,  under  the  circumstances  presented  there 
is  no  good  reason  why  each  should  not  be  liable  for  the  damages  caused 
by  the  different  acts  of  all.  The  water  from  both  sources  commingled 
together  and  became  one  body  concentrating  at  the  same  locality  soaking 
through  the  wall  into  the  plaintiffs'  premises  and  injuring  the  plaintiffs' 
property;  and  it  cannot  be  said  that  the  water  which  the  defendant's 
negligence  caused  to  flow  upon  the  plaintiffs'  premises  and  which  be- 
came a  portion  of  all  which  came  there,  did  not  produce  the  damages 
complained  of.  The  water  with  which  each  of  the  parties  were  in- 
strumental in  injuring  the  plaintiffs  was  one  mass  and  inseparable,  and 
no  distinction  can  be  made  between  the  different  sources  from  whence 
it  flowed,  so  that  it  can  be  claimed  that  each  caused  a  separate  and  dis- 
tinct injury  for  which  each  one  is  separately  responsible.  The  case 
presented  is  not  like  that  where  the  animals  belonging  to  several  own- 
ers do  damage  together  and  it  is  held  that  each  owner  is  not  separate- 
ly liable  for  the  acts  of  all,  as  there  is  only  a  separate  trespass  or  wrong 
against  each.  Van  Steenburgh  v.  Tobias,  17  Wend.  562,  31  Am.  Dec. 
310;  Auchmuty  v.  Ham,  1  Denio,  495;  Partenheimer  v.  Van  Order 
20  Barb.  479.  No  such  division  can  be  made  of  the  separate  acts  in  the 
case  at  bar,  and  it  bears  some  analogy  to  that  of  Colegrove  v.  Harlem 
&  N.  H.  R.  Co.  and  N.  Y.  &  N.  H.  R.  R.  Co.,  13  N.  Y.  Super.  Ct.  382, 
20  N.  Y.  49,  75  Am.  Dec.  418,  where  the  injury  was  caused  by  concur- 
ring negligence  in  the  management  of  the  trains  of  two  railroad  com- 
panies which  came  in  collision,  and  the  defendants  were  held  jointly 
liable.  The  collision  was  but  a  single  act  caused  by  the  separate  neg- 
ligence of  different  parties  which  together  produced  the  result.  Here 
also  the  contractor  and  subcontractors  were  separately  negligent  and 
although  such  negligence  was  not  concurrent,  yet  the  negligence  of 
both  these  parties  contributed  to  produce  the  damages  caused  at  one 
and  the  same  time.  It  is  no  defense  for  a  person  against  whom  neg- 
ligence which  caused  damage  is  proved,  to  prove  that  without  fault  on 
his  part  the  same  damages  would  have  resulted  from  the  act  of  another 
(Webster  v.  H.  R.  R.  R.  Co.,  38  N.  Y.  260),  and  as  the  case  stands  the 
referee  was  justified  in  holding  that  the  defendant  was  responsible  for 
the  entire  damages. 

There  was  no  error  in  the  admission  or  rejection  of  evidence,  and 
no  ground  is  shown  for  reversing  the  judgment. 

Judgment  affirmed,  with  costs.    All  concur.    Judgment  affirmed. 


JOINT  AND  SEVERAL  LIABILITY  113 


2.  SEPARATE  INJURIES 


LITTLE  SCHUYLKILL  NAVIGATION,  R.  &  COAL  CO.  v. 
RICHARD'S  ADM'R. 

(Supreme  Court  of  Pennsylvania,  1868.    57  Pa.  142,  98  Am.  Dec.  209.) 

The  declaration  contained  two  counts.  The  first  was  for  injury  to 
the  forge  dam  of  plaintiff  upon  the  Little  Schuylkill  river  by  reason 
of  defendants,  by  their  servants  and  employes,  casting  and  throwing 
into  said  river,  above  the  dam,  and  near  to  and  along  the  said  stream 
large  quantities  of  coal  dirt,  slate  and  loose  earths,  which  by  action  of 
the  water  were  carried  down  to  and  filled  up  the  said  dam.  Besides 
the  mines  of  the  defendants,  there  were  a  number  of  others  on  the 
Little  Schuylkill  and  its  tributaries,  above  Hecla  Forge,  owned  by  dif- 
ferent owners,  entirely  independent  of  the  defendants  and  having  no 
connection  with  them.  The  dam  was  filled  by  the  coal  dirt  coming 
down  these  several  streams  into  it  from  all  these  mines. 

AGNEW,  J.12  All  the  assignments  of  error,  from  the  4th  to  the  llth, 
inclusive,  involve  substantially  the  same  question,  and  may  be  consid- 
ered together.  The  plaintiff's  intestate  was  the  owner  of  a  dam  and 
water  power  upon  the  Little  Schuylkill  river.  In  process  of  time, 
from  1851  to  1858,  the  basin  of  the  dam  became  filled  with  the  coal 
dirt,  washed  down  by  the  stream  from  the  mines  above,  of  several 
owners  upon  Little  Schuylkill,  Panther  creek,  and  other  tributaries. 
They  were  separate  collieries,  worked  independently  of  each  other. 
The  plaintiff  seeks  to  charge  the  defendants  below  with  the  whole 
injury  caused  by  the  filling  up  of  his  basin.  The  substance  of  the 
charge  and  answers  to  points  was,  that  if  at  the  time  the  defendants 
were  engaged  in  throwing  the  coal  dirt  into  the  river,  about  ten  miles 
above  the  dam,  the  same  thing  was  being  done  at  the  other  collieries, 
and  the  defendants  knew  of  this,  they  were  liable  for  the  combined 
result  of  all  the  series  of  deposits  of  dirt  from  the  mines  above  from 
1851  till  1858.  The  aspects  of  the  case  were  varied,  by  deposits  being 
made  on  and  along  the  banks  of  the  streams,  which  were  carried  away 
by  ordinary  rains  and  freshets ;  but  the  above  is  the  most  direct  state- 
ment of  the  injury  alleged,  and  is  taken  therefore  as  the  test  of  the 
principle  laid  down  by  the  court.  The  doctrine  of  the  learned  judge 
is  somewhat  novel,  though  the  case  itself  is  new;  but,  if  correct,  is 
well  calculated  to  alarm  all  riparian  owners,  who  may  find  themselves 
by  a  slight  negligence  overwhelmed  by  others  in  gigantic  ruin. 

11  For  discussion  of  general  principles,  see  Chapin  on  Torts,  §  57  (C). 

12  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  omitted. 

CHAP.  CAS.  TORTS — 8 


114  PARTIES 

It  is  immaterial  what  may  be  the  nature  of  their  several  acts,  or 
how  small  their  share  in  the  ultimate  injury.  If,  instead  of  coal  dirt, 
others  were  felling  trees  and  suffering  their  tops  and  branches  to  float 
down  the  stream,  finally  finding  a  lodgment  in  the  dam  with  the  coal 
dirt,  he  who  threw  in  the  coal  dirt,  and  he  who  felled  the  trees  would 
each  be  responsible  for  the  acts  of  the  other.  In  the  same  manner 
separate  trespassers  who  should  haul  their  rubbish  upon  a  city  lot,  and 
throw  it  upon  the  same  pile,  would  each  be  liable  for  the  whole,  if  the 
final  result  be  the  only  criterion  of  liability.  But  the  fallacy  lies  in 
the  assumption  that  the  deposit  of  the  dirt  by  the  stream  in  the  basin 
is  the  foundation  of  liability.  It  is  the  immediate  cause  of  the  .injury, 
but  the  ground  of  action  is  the  negligent  act  above.  The  right  of  ac- 
tion arises  upon  the  act  of  throwing  the  dirt  into  the  stream — this  is 
the  tort,  while  the  deposit  below  is  only  a  consequence.  The  liability, 
therefore,  began  above  with  the  defendant's  act  upon  his  own  land, 
and  this  act  was  wholly  separate,  and  independent  of  all  concert  with 
others.  His  tort  was  several  when  it  was  committed,  and  it  is  difficult 
to  see  how  it  afterwards  became  joint,  because  its  consequences  united 
with  other  consequences.  The  union  of  consequences  did  not  increase 
his  injury.  If  the  dirt  were  deposited  mountain  high  by  the  stream 
his  dirt  filled  only  its  own  space,  and  it  was  made  neither  more  nor 
less  by  the  accretions.  True,  it  may  be  difficult  to  determine  how 
much  dirt  came  from  each  colliery,  but  the  relative  proportions 
thrown  in  by  each  may  form  some  guide,  and  a  jury  in  a  case  of  such 
difficulty,  caused  by  the  party  himself,  would  measure  the  injury  of 
each  with  a  liberal  hand.  But  the  difficulty  of  separating  the  injury 
of  each  from  the  others  would  be  no  reason  that  one  man  should  be 
held  to  be  liable  for  the  torts  of  others  without  concert.  It  would 
be  simply  to  say,  because  the  plaintiff  fails  to  prove  the  injury  one 
man  does  him,  he  may  therefore  recover  from  that  one  all  the  injury 
that  others  do. 

This  is  bad  logic  and  hard  law.  Without  concert  of  action  no  joint 
suit  could  be  brought  against  the  owners  of  all  the  collieries,  and 
clearly  this  must  be  the  test;  for,  if  the  defendants  can  be  held  liable 
for  the  acts  of  all  the  others,  so  each  and  every  other  owner  can  be 
made  liable  for  all  the  rest,  and  the  action  must  be  joint  and  several. 
But  the  moment  we  should  find  them  jointly  sued,  then  the  want  of 
concert  and  the  several  liability  of  each  would  be  apparent.  These 
principles  are  fully  sustained  by  the  following  cases :  Russell  v.  Tom- 
linson  et  al.,  2  Conn.  206;  Adams  v.  Hall,  2  Vt.  9,  19  Am.  Dec.  690; 
Van  Steenburgh  v.  Tobias,  17  Wend.  (N.  Y.)  562,  31  Am.  Dec.  310; 
Buddington  v.  Shearer,  20  Pick.  (Mass.)  477;  Auchmuty  v.  Ham,  1 
Denio  (N.  Y.)  495 ;  Partenheimer  v.  Van  Order,  20  Barb.  (N.  Y.)  479. 
These  were  cases  where  the  dogs  of  several  owners  united  in  killing 
sheep,  and  where  the  cattle  of  different  owners  broke  into  an  inclosure 
and  united  in  the  damage.  The  concert  and  united  action  of  the  dogs 


JOINT   AND   SEVERAL   LIABILITY  115 

and  cattle  were  held  to  create  no  joint  liability  of  their  owners,  not- 
withstanding the  difficulty  of  determining  the  several  injury  done  by 
the  animals  of  each.  The  rule  laid  down  in  the  last  case  was  that, 
where  the  owner  of  the  garden  could  not  prove  the  injury  of  each 
cow,  the  jury  would  be  justified  in  concluding  that  each  did  an  equal 
injury.  Several  cases  were  cited  in  opposition,  but  do  not,  in  our 
opinion,  support  the  doctrine  of  the  charge. 

In  Stone  v.  Dickinson,  5  Allen  (Mass.)  29,  81  Am.  Dec.  727,  where 
an  officer  made  an  arrest  at  the  same  instant  upon  nine  writs,  and  the 
parties  were  held  jointly  liable  for  the  trespass,  the  ground  of  action 
was  the  arrest  itself,  a  single  act,  incapable  of  division  or  separation, 
but  being  authorized  by  all,  all  were  held  to  have  been  concerned  in 
the  very  act,  which  each  authorized  the  same  agent  to  commit.  In 
Colegrove  v.  N.  Y.  &  N.  H.  and  N.  Y.  &  Harlem  Railroad  Companies, 
20  N.  Y.  492,  75  Am.  Dec.  418,  the  two  companies  were  using  the 
same  track  by  joint  arrangement  governed  by  common  rules,  the  col- 
lision of  their  trains  was  owing- to  mutual  and  concurring  negligence 
and  the  injury  which  was  single  was  therefore  their  concurrent  and 
direct  act.  They  were  held  to  be  jointly  liable  because  of  their  joint 
use  of  the  track,  their  common  duty  to  all  travelling  the  road,  and  their 
concurrent  negligence  in  the  direct  act  which  caused  the  injury.  The 
case  of  the  party  wall  in  this  state  was  put  on  the  same  ground.  The 
distinction  between  that  case  and  this  was  sharply  defined  by  our 
brother  Strong.  It  was  there  said  that  the  maintenance  of  an  inse-1 
cure  party  wall  was  a  tort  in  which  both  participated.  The  act  was 
single,  and  it  was  the  occasion  of  the  injury.  The  case  is  not  to  be 
confounded  with  actions  of  trespass  brought  for  separate  acts  done 
by  two  or  more  defendants.  Then  if  there  be  no  concert,  no  common 
intent,  there  is  no  joint  liability.  Here,  the  keeping  of  the  wall  safe 
was  a  common  duty,  and  a  failure  to  do  so  was  a  common  neglect. 
Klauder  v.  McGrath,  35  Pa.  128,  78  Am.  Dec.  329.  In  principle  Bard 
et  al.  v.  Yohn,  26  Pa.  482,  more  resembles  this  case.  There  the  ef- 
fects of  the  independent  acts  of  the  defendants  on  the  opposite  sides 
of  the  street  united  in  causing  the  injury,  but  they  were  not  jointly 
liable,  because  there  was  no  concert  in  the  acts  themselves.  *  *  * 

Judgment  reversed  and  a  venire  facias  de  novo  awarded. 


116  PARTIES 


3.  RATIFICATION  1S 


DEMPSEY  v.  CHAMBERS. 

(Supreme  Judicial  Court  of  Massachusetts,  1891.     154  Mass.  330,  28  N.  E.  279, 
13  L.  R.  A,  219,  26  Am.  St.  Rep.  249.) 

Action  by  Patrick  Dempsey  against  James  Chambers  for  the  neg- 
ligence of  one  McCullock  in  unloading  coal  ordered  by  plaintiff  from 
defendant.  McCullock  was  not  the  servant  of  defendant,  and  under- 
took to  deliver  the  coal  without  his  direction  or  knowledge,  and  in  do- 
ing so  broke  a  pane  of  glass  in  the  window  of  plaintiff's  building. 
Afterwards,  and  with  full  knowledge  of  the  accident  and  delivery  of 
the  coal  by  McCullock,  defendant  presented  a  bill  therefor  to  plain- 
tiff, and  demanded  payment.  Trial  to  the  court,  judgment  for  plain- 
tiff, and  defendant  excepts. 

HOLMES,  J.  This  is  an  action  of  tort  to  recover  damages  for  the 
breaking  of  a  plate-glass  window.  The  glass  was  broken  by  the  neg- 
ligence of  one  McCullock  while  delivering  some  coal  which  had  been 
ordered  of  the  defendant  by  the  plaintiff.  It  is  found  as  a  fact  that 
McCullock  was  not  the  defendant's  servant  when  he  broke  the  window, 
but  that  the  "delivery  of  the  coal  by  [him]  was  ratified  by  the  defend- 
ant, and  that  such  ratification  made  McCullock  in  law  the  agent  and 
servant  of  the  defendant  in  the  delivery  of  the  coal."  On  this  finding 
the  court  ruled  "that  the  defendant,  by  his  ratification  of  the  delivery 
of  the  coal  by  McCullock,  became  responsible  for  his  negligence  in 
the  delivery  of  the  coal."  The  defendant  excepted  to  this  ruling,  and 
to  nothing  else.  We  must  assume  that  the  finding  was  warranted  by 
the  evidence,  a  majority  of  the  court  being  of  the  opinion  that  the 
bill  of  exceptions  does  not  purport  to  set  forth  all  the  evidence  on 
which  the  finding  was  made.  Therefore  the  only  question  before  us 
is  as  to  the  correctness  of  the  ruling  just  stated. 

If  we  were  contriving  a  new  code  to-day  we  might  hesitate  to  say 
that  a  man  could  make  himself  a  party  to  a  bare  tort  in  any  case  merely 
by  assenting  to  it  after  it  had  been  committed.  But  we  are  not  at 
liberty  to  refuse  to  carry  out  to  its  consequences  any  principle  which 
we  believe  to  have  been  part  of  the  common  law  simply  because  the 
grounds  of  policy  on  which  it  must  be  justified  seem  to  us  to  be  hard 
to  find,  and  probably  to  have  belonged  to  a  different  state  of  society. 

It  is  hard  to  explain  why  a  master  is  liable  to  the  extent  that  he  is 
for  the  negligent  acts  of  one  who  at  the  time  really  is  his  servant,  act- 
ing within  the  general  scope  of  his  employment.  Probably  master  and 
servant  are  "feigned  to  be  all  one  person"  by  a  fiction  which  is  an 

i*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  57  (E). 


JOINT   AND   SEVERAL   LIABILITY  117 

echo  of  the  patria  potestas  and  of  the  English  frankpledge.  Byington 
v.  Simpson,  134  Mass.  169,  170,  45  Am.  Rep.  314;  Fitzh.  Abr.  "Cor- 
one,"  pi.  428.  Possibly  the  doctrine  of  ratification  is  another  aspect 
of  the  same  tradition.  The  requirement  that  the  act  should  be  done 
in  the  name  of  the  ratifying  party  looks  that  way.  New  England 
Dredging  Co.  v.  Rockport  Granite  Co.,  149  Mass.  381,  382,  21  N.  E. 
947;  Fuller  &  Trimwell's  Case,  2  Leon.  215,  216;  Sext.  Dec.  5,  12; 
De  Reg.  Jur.  Reg.  9;  D.  43,  26,  13;  D.  43,  16,  1,  §  14,  gloss.,  and  cases 
next  cited. 

The  earliest  instances  of  liability  by  way  of  ratification  in  the  Eng- 
lish law,  so  far  as  we  have  noticed,  were  where  a  man  retained  prop- 
erty acquired  through  the  wrongful  act  of  another.  Y.  B.  30  Edw. 
I.  128  (Roll's  Ed.),  38  Lib.  Ass.  223,  pi.  9;  s.  c.  38  Edw.  Ill,  18;  12 
Edw.  IV.  9,  pi.  23;  Plowd.  8  ad  fin.  27,  31..  See  Bract.  158b,  159a, 
171b.  But  in  these  cases  the  defendant's  assent  was  treated  as  relat- 
ing back  to  the  original  act,  and  at  an  early  date  the  doctrine  of  rela- 
tion was  carried  so  far  as  to  hold  that,  where  a  trespass  would  have 
been  justified  if  it  had  been  done  by  the  authority  by  which  it  purported 
to  have  been  done,  a  subsequent  ratification  might  also  justify  it.  Y. 
B.  7  Hen.  IV.  34,  pi.  1.  This  decision  is  qualified  in  Fitzh.  Abr. 
<(Bayllye,"  pi.  4,  and  doubted  in  Brooke,  Abr.  "Trespass,"  pi.  86,  but 
it  has  been  followed  and  approved  so  continuously  .and  in  so  many 
later  cases  that  it  would  be  hard  to  deny  that  the  common  law  was  as 
there  stated  by  Chief  Justice  Gascoigne.  Godb.  109,  110,  pi.  129; 
2  Leon.  196,  pi.  246;  Hull  v.  Pickersgill,  1  Brod.  &  B.  282;  Muskett 
v.  Drummond,  10  Barn.  &  C.  153,  157;  Buron  v.  Denman,  2  Exch. 
167,  178;  Secretary  of  State  v.  Sahaba,  13  Moore,  P.  C.  22,  86;  Cheet- 
ham  v.  Mayor,  etc.,  L.  R.  10  C.  P.  249 ;  Wiggins  v.  U.  S.,  3  Ct.  Cl. 
412. 

If  we  assume  that  an  alleged  principal,  by  adopting  an  act  which 
was  unlawful  when  done  can  make  it  lawful,  it  follows  that  he  adopts 
it  at  his  peril,  and  is  liable  if  it  should  turn  out  that  his  previous  com- 
mand would  not  have  justified  the  act.  It  never  has  been  doubted 
that  a  man's  subsequent  agreement  to  a  trespass  done  in  his  name  and 
for  his  benefit  amounts  to  a  command  so  far  as  to  make  him  answer- 
able. The  ratihabitio  mandate  comparatur  of  the  Roman  lawyers  and 
the  earlier  cases  (D.  46,  3,  12,  §  4;  D.  43,  16,  1,  §  14;  Y.  B.  30  Edw. 
1.  128)  has  been  changed  to  the  dogma  sequiparatur  ever  since  the  days 
of  Lord  Coke.  4  Inst.  317.  See  Brooke,  Abr.  "Trespass,"  pi.  113,  Co. 
Litt.  207a ;  Wing.  Max.  124 ;  Com.  Dig.  "Trespass,"  C.  1 ;  Railway 
Co.  v.  Broom,  6  Exch.  314,  326,  327 ,  and  cases  hereafter  cited. 

Doubts  have  been  expressed,  which  we  need  not  consider,  whether 
this  doctrine  applied  to  a  case  of  a  bare  personal  tort.  Adams  v.  Free- 
man, 9  Johns.  (N.  Y.)  117,  118;  Anderson  and  Warberton,  JJ.,  in 
Bishop  v.  Montague,  Cro.  Eliz.  824.  If  a  man  assaulted  another  in  the 
street  out  of  his  own  head,  it  would  seem  rather  strong  to  say  that  if 


118  PARTIES 

he  merely  called  himself  my  servant,  and  I  afterwards  assented,  with- 
out more,  our  mere  words  would  make  me  a  party  to  the  assault,  al- 
though in  such  cases  the  canon  law  excommunicated  the  principal  if 
the  assault  was  upon  a  clerk.  Sext.'  Dec.  5,  11,  23.  Perhaps  the  ap- 
plication of  the  doctrine  would  be  avoided  on  the  ground  that  the 
facts  did  not  show  an  act  done  for  the  defendant's  benefit  (Wilson 
v.  Barker,  1  Nev.  &  M.  409,  4  Barn.  &  Adol.  614;  Smith  v.  Lozo,  42 
Mich.  6,  3  N.  W.  227) ;  as  in  other  cases  it  has  been  on  the  ground 
that  they  did  not  amount  to  such  a  ratification  as  was  necessary  (Tucker 
v.  Jerris,  75  Me.  184;  Hyde  v.  Cooper,  26  Vt.  552). 

But  the  language  generally  used  by  judges  and  text-writers,  and  such 
decisions  as  we  have  been  able  to  find,  is  broad  enough  to  cover  a 
case  like  the  present,  when  the  ratification  is  established.  Perley  v. 
Georgetown,  7  Gray,  464 ;  Bishop  v.  Montague,  Cro.  EHz.  824 ;  Sander- 
son v.  Baker,  2  W.  Bl.  832,  3  Wils.  309;  Barker  v.  Braham,  2  W. 
Bl.  866,  868,  3  Wils.  368;  Badkin  v.  Powell,  Cowp.  476,  479;  Wilson 
v.  Tumman,  6  Man.  &  G.  236,  242 ;  Lewis  v.  Read,  13  Mees.  &  W. 
834;  Buron  v.  Denman,  2  Exch.  167,  188;  Bird  v.  Brown,  4  Exch. 
786,  799;  Railway  Co.  v.  Broom,  6  Exch.  314,  326,  327;  Roe  v. 
Railway  Co.,  7  Exch.  36,  42,  43 ;  Ancona  v.  Marks,  7  Hurl.  &  N.  686, 
695;  Condit  v.  Baldwin,  21  N.  Y.  219,  225,  78  Am.  Dec.  137;  Exum 
v.  Brister,  35  Miss.  391 ;  Railway  Co.  v.  Donahoe,  56  Tex.  162 ;  Mur- 
ray v.  Lovejoy,  2  Cliff.  191,  195,  Fed.  Cas.  No.  9,963.  See  Lovejoy  v. 
Murray,  3  Wall.  1,  9,  18  L.  Ed.  129;  Story,  Ag.  §§  455,  456. 

The  question  remains  whether  the  ratification  is  established.  As  we 
understand  the  bill  of  exceptions,  McCullock  took  on  himself  to  deliver 
the  defendant's  coal  for  his  benefit,  and  as  his  servant,  and  the  defend- 
ant afterwards  assented  to  McCullock's  assumption.  The  ratification 
was  not  directed  specifically  to  McCullock's  trespass,  and  that  act  was 
not  for  the  defendant's  benefit,  if  taken  by  itself,  but  it  was  so  con- 
nected with  McCullock's  employment  that  the  defendant  would  have 
been  liable  as  master  if  McCullock  really  had  been  his  servant  when 
delivering  the  coal.  We  have  found  hardly  anything  in  the  books  deal- 
ing with  the  precise  case,  but  we  are  of  opinion  that  consistency  with 
the  whole  course  of  authority  requires  us  to  hold  that  the  defendant's 
ratification  of  the  employment  established  the  relation  of  master  and 
servant  from  the  beginning,  with  all  its  incidents,  including  the  anoma- 
lous liability  for  his  negligent  acts.  See  Coomes  v.  Houghton,  102 
Mass.  211,  213,  214;  Cooley,  Torts,  128,  129.  The  ratification  goes  to 
the  relation,  and  establishes  it  ab  initio.  The  relation  existing,  the  mas- 
ter is  answerable  for  torts  which  he  has  not  ratified  specifically,  just 
as  he  is  for  those  which  he  has  not  commanded,  and  as  he  may  be 
for  those  which  he  has  expressly  forbidden.  In  Gibson's  Case,  Lane, 
90,  it  was  agreed  that  if  strangers,  as  servants  to  Gibson,  but  without 
his  precedent  appointment,  had  seized  goods  by  color  of  his  office,  and 
afterwards  had  misused  the  goods,  and  Gibson  ratified  the  seizure, 
he  thereby  became  a  trespasser  ab  initio,  although  not  privy  to  the 


JOINT   AND   SEVERAL   LIABILITY  119 

misusing  which  made  him  so;  and  this  proposition  is  stated  as  law 
in  Com.  Dig.  "Trespass,"  C.  1 ;  Elder  v.  Bemis,  2  Mete.  599,  605.  In 
Coomes  v.  Houghton,  102  Mass.  211,  the  alleged  servant  did  not  pro- 
fess to  act  as  servant  to  the  defendant,  and  the  decision  was  that  a 
subsequent  payment  for  his  work  by  the  defendant  would  not  make 
him  one.  For  these  reasons,  in  the  opinion  of  a  majority  of  the  court, 
the  exceptions  must  be  overruled.  Exceptions  overruled. 


4.  INDEMNITY  AND  CONTRIBUTION  ** 


TRUSTEES  OF  VILLAGE  OF  GENEVA  v.  BRUSH  ELECTRIC 

CO. 

(Supreme  Court  of  New  York,  General  Term,  Fifth  Department,  1889.    50 
Hun,  581,  a  N.  Y.  Supp.  595.) 

DWIGHT,  J.  This  was  an  action  over,  by  the  plaintiffs,  on  a  judg- 
ment recovered  against  them  by  one  Maloney  for  personal  injuries 
caused  by  an  obstruction  maintained  by  the  defendant  in  one  of  the 
streets  of  the  plaintiff's  village.  The  defendant  was  under  a  contract 
with  the  plaintiffs  to  light  the  streets  of  the  village  by  electricity.  A 
contract  to  that  purpose  was  first  made  in  May,  1884,  with  the  "Brush- 
Swan  Electric  Light  Company  of  New  England."  Under  that  con- 
tract the  defendants  designated  the  places  where  the  electric  lamps 
should  be  put,  one  of  which  places  was  at  the  intersection  of  Ex- 
change and  Jackson  streets.  Thereupon  the  Brush-Swan  Company, 
early  in  June,  1884,  for  the  purpose  of  supporting  the  lamp  so  located, 
erected  the  pole  which  constituted  the  obstruction  complained  of  in  the 
action  of  Maloney.  It  was  erected  on  the  east  side  of  Exchange  street, 
and,  together  with  a  pole  diagonally  opposite  on  Jackson  street,  served 
to  support  the  wires  from  which  a  lamp  was  suspended  over  the  inter- 
section of  the  two  streets.  Afterwards  the  Brush-Swan  Company 
transferred  all  its  rights  and  interests  under  the  contract  above  men- 
tioned to  the  defendant;  and^  on  the  5th  of  December,  1884,  the  latter 
company  entered  into  a  contract  with  the  plaintiffs,  by  which  it  under- 
took, with  unimportant  modifications,  "to  fulfill  the  conditions  of  the 
said  agreement  of  the  Brush-Swan  Electric  Light  Company."  On 
the  2d  day  of  June,  1885  (the  above-mentioned  contracts  having  ex- 
pired by  limitation-),  the  parties  to  this  action  entered  into  a  new  con- 
tract to  the  same  purpose,  which  contained  the  provision,  "Lamps  to 
be  about  35  feet  high,  and  to  be  as  now  located ;"  and  on  the  10th  day 
of  the  same  month  the  accident  occurred  which  was  the  basis  of  the 
former  action.  The  pole  then  stood  as  it  had  been  originally  placed 

n  For  discussion  of  principles,  see  Chapln  on  Torts,  §  58. 


120  PARTIES 

by  the  former  contractor,  a  year  before.  No  objection  had  ever  been 
made  by  the  plaintiff  to  its  location,  but,  on  the  contrary,  as  the  court 
below  expressly  finds,  it  had  been  permitted  to  remain  theie  "by  the 
consent  of  the  plaintiffs."  This  finding  is  one  of  fact,  made  in  re- 
sponse to  the  request  of  the  defendant,  and  is,  of  course,  conclusive 
upon  the  plaintiffs,  who  have  neither  appealed  from  the  judgment,  nor 
excepted  to  any  of  the  findings.  There  is  a  further  finding  to  the  ef- 
fect "that  general  directions  were  given  to  the  agent  of  the  Brush- 
Swan  Electric  Company  to  set  said  pole  inside  of  the  curb."  This 
finding  was  excepted  tp,  and  seems  to  have  been  without  evidence 
tending  to  sustain  it.  Code  Civil  Proc.  §§  992,  993.  There  was  no  di- 
rection which  specified  or  included  this  pole.  The  only  general  direc- 
tion given,  at  any  time,  on  the  subject  of  the  location  of  poles  related 
to  those  employed  in  an  experimental  circuit  which  was  set  up  by  the 
Brush-Swan  Company,  before  any  contract  was  made,  and  which  did 
not  include  the  pole  or  the  location  in  question.  We  have,  then,  the 
affirmative  finding  that  the  plaintiffs  consented  to  the  maintenance  of 
this  pole  by  the  defendant  in  the  position  in  which  it  was  located  when 
the  contract  was  assumed  by  the  latter,  and  in  which  it  remained  when 
the  injury  was  sustained  for  which  judgment  was  recovered.  By  that 
judgment  the  pole  so  located  was  adjudged  to  be  a  nuisance,  for  which 
the  plaintiff  was  responsible  to  the  party  injured.  But  the  court,  at 
the  circuit,  found  as  a  conclusion  of  law  that  "as  between  the  plaintiff 
and  defendant  herein  the  pole  in  question  was  not  maintained  by  the 
concurrence  of  the  plaintiff."  It  is  not  made  quite  clear  what  distinc- 
tion was  intended  between  the  terms  "consent"  and  "concurrence,"  or 
in  what  sense  it  can  be  said  that  this  pole  was  maintained  with  the 
consent,  and  without  the  concurrence,  of  the  plaintiffs.  If  the  main- 
tenance of  the  pole  had  involved  any  affirmative  action  on  the  part  of 
the  defendant,  it  might  have  been  said  that  such  action  was  without 
the  participation  or  co-operation  of  the  plaintiffs;  but,  as  we  have 
seen,  no  such  action  was  involved.  The  defendant  had  neither  set,  nor 
reset,  nor  repaired  the  pole.  It  had  simply  left  it  (with  the  consent  of 
the  plaintiffs)  where  it  was  placed  by  the  former  contractor.  Or  if  the 
injury  for  which  recovery  was  had,  had  resulted  from  the  use  of  the 
pole,  it  might  properly  have  been  found  that  the  plaintiffs  did  not 
participate  in  such  use.  But  it  must  be  observed,  it  was  in  the  loca- 
tion, and  not  in  the  use,  of  the  pole  that  the  nuisance  consisted.  No 
wrongful  or  negligent  use  was  alleged  or  proved.  The  injury  to  Ma- 
loney  resulted,  not  from  any  use  of  the  pole,  but  only  from  its  location. 
That  it  was  permitted  to  remain  in  that  location,  with  the  consent  of 
the  plaintiffs,  is  affirmatively  found ;  and,  as  we  have  seen,  no  further 
concurrence  on  the  part  of  the  plaintiffs  was,  in  the  nature  of  the  case, 
possible.  Under  these  circumstances,  consent  and  concurrence  seem 
to  be  convertible  terms.  Such  being  the  case,  the  plaintiffs  are  in  the 
position  of  joint  wrongdoers — in  the  same  fault  with  the  defendant — 


JOINT  AND  SEVERAL  LIABILITY  121 

and  hence  not  entitled  to  claim  indemnity  or  contribution  from  the 
latter. 

The  general  rule,  which  denies  indemnity  or  contribution  to  joint 
wrongdoers,  is  elementary.  The  cases  in  which  recovery  over  is  per- 
mitted in  favor  of  one  who  has  been  compelled  to  respond  to  the  par- 
ty injured  are  exceptions  to  the  general  rule,  and  are  based  upon  princi- 
ples of  equity.  Such  exceptions  obtain  in  two  classes  of  cases:  First, 
where  the  party  claiming  indemnity  has  not  been  guilty  of  any  fault  ex- 
cept technically  or  constructively,  as  where  an  innocent  master  is  held 
to  respond  for  the  tort  of  his  servant  acting  within  the  scope  of  his  em- 
ployment; or,  second,  where  both  parties  have  been  in  fault,  but  not 
in  the  same  fault,  towards  the  party  injured,  and  the  fault  of  the 
party  from  whom  indemnity  is  claimed  was  the  primary  and  efficient 
cause  of  the  injury.  Very  familiar  illustrations  of  the  second  class 
are  found  in  cases  of  recovery  against  municipalities  for  obstructions 
to  the  highways  caused  by  private  persons.  The  fault  of  the  latter 
is  the  creation  of  the  nuisance;  that  of  the  former,  the  failure  to  re- 
move it  in  the  exercise  of  its  duty  to  care  for  the  safety  of  the  public 
streets.  The  first  was  a  positive  tort,  and  the  efficient  cause  of  the  in- 
jury complained  of ;  the  latter,  the  negative  tort  of  neglect  to  act  upon 
notice,  express  or  implied.  Of  the  latter  class  are  the  cases,  cited  by 
counsel  for  the  respondents,  of  Village  of  Port  Jarvis  v.  Bank,  96  N. 
Y.  550;  Village  of  Seneca  Falls  v.  Zalinski,  8  Hun,  575 ;  City  of  Roch- 
ester v.  Montgomery,  72  N.  Y.  65;  Lowell  v.  Railroad  Co.,  23  Pick. 
(Mass.)  24,  34  Am.  Dec.  33.  The  case  at  bar  is  distinguished  from 
these  and  all  similar  cases,  by  the  fact,  affirmatively  found  by  the 
court,  that  the  plaintiffs  consented  to  the  maintenance  of  the  pole  in 
the  position  in  which  the  defendant  received  it  from  the  former  con- 
tractor. In  most  of  the  cases  of  this  class  the  notice  to  the  municipali- 
ty, which  charges  it  with  negligence,  is  constructive  merely  (see  Lowell 
v.  Railroad  Co.,  supra) ;  but,  even  though  the  fact  of  negligence  be  es- 
tablished by  proof  of  express  notice,  the  fault  of  the  municipality  is 
negative,  and  the  latter  is  not  in  the  same  fault,  or  in  pari  delicto,  with 
the  wrongdoer.  To  this  case  we  think  the  language  of  the  court  by 
Allen,  J.,  in  Johnson  v.  Oppenheim,  55  N.  Y.  280,  is  fully  applicable: 
"As  one  who  has  consented  to  an  act  cannot  maintain  an  action  for 
any  loss  sustained  by  him,  so  no  one  can  avoid  an  obligation  or  relieve 
himself  from  a  duty  to  another,  by  the  act  of  a  third  party  to  which 
he  has  consented."  On  the  grounds  indicated  we  think  the  first  con- 
clusion of  law,  to  the  effect  that  the  pole  in  question  was  not  main- 
tained with  the  concurrence  of  the  plaintiffs,  and  the  final  conclusion, 
that  the  plaintiffs  are  entitled  to  recover  against  the  defendant,  were 
not  warranted  by  the  findings  of  fact,  or  by  the  evidence  in  the  case. 
For  these  reasons  the  judgment  should  be  reversed  and  a  new  trial 
granted;  costs  to  abide  event.  All  concur. 


122  CONFLICT   OF  LAWS 

CONFLICT  OF  LAWS 
I.  Transitory  and  Local  Actions1 


ELLENWOOD  v.  MARIETTA  CHAIR  CO. 

(Supreme  Court  of  the  United  States,  1895.     158  U.  S.  105,  15  Sup.  Ct.  771,  39 

L.  Ed.  913.) 

GRAY,  J.2  *  *  *  By  the  law  of  England,  and  of  those  states  of 
the  Union  whose  jurisprudence  is  based  upon  the  common  law,  an 
action  for  trespass  upon  land,  like  an  action  to  recover  the  title  or 
the  possession  of  the  land  itself,  is  a  local  action,  and  can  only  be 
brought  within  the  State  in  which  the  land  lies.  Livingston  v.  Jef- 
ferson, 1  Brock.  203,  Fed.  Cas.  No.  8,411 ;  McKenna  v.  Fisk,  1  How. 
241,  247,  11  L.  Ed.  117;  Northern  Indiana  Railroad  v.  Michigan  Cen- 
tral Railroad,  15  How.  233,  242,  251,  14  L.  Ed.  674;  Huntington  v. 
Attrill,  146  U.  S.  657,  669,  670,  13  Sup.  Ct.  224,  36  L.  Ed.  1123; 
British  South  Africa  Co.  v.  Companhia  de  Mocambique,  [1893]  App. 
Cas.  602;  Crag-in  v.  Lovell,  88  N.  Y.  258;  Allin  v.  Connecticut  River 
Co.,  150  Mass.  560,  23  N.  E.  581,  6  L.  R.  A.  416;  Thayer  v.  Brooks, 
17  Ohio,  489,  492,  49  Am.  Dec.  474;  Kinkead's  Code  Pleading,  §  35. 

The  original  petition  contained  two  counts,  the  one  for  trespass 
upon  land,  and  the  other  for  taking  away  and  converting  to  the  de- 
fendant's use  personal  property;  and  the  cause  of  action  stated  in 
the  second  count  might  have  been  considered  as  transitory,  although 
the  first  was  not.  McKenna  v.  Fisk,  above  cited ;  Williams  v.  Breedon, 
1  Bos.  &  Pul.  329. 

But  the  petition,  as  amended  by  the  plaintiff,  on  motion  of  the 
defendant,  and  by  order  and  leave  of  the  court,  contained  a  single 
count,  alleging  a  continuing  trespass  upon  the  land  by  the  defendant, 
through  its  agents,  and  its  cutting  and  conversion  of  timber  growing 
thereon.  This  allegation  was  of  a  single  cause  of  action,  in  which  the 
trespass  upon  the  land  was  the  principal  thing  and  the  conversion 
of  the  timber  was  incidental  only,  and  could  not,  therefore,  be  main- 
tained by  proof  of  the  conversion  of  personal  property,  without  also 
proving  the  trespass  upon  real  estate.  Cotton  v.  United  States,  11 
How.  229,  13  L.  Ed.  675;  Eames  v.  Prentice,  8  Gush.  (Mass.)  337; 
Howe  v.  Willson,  1  Denio  (N.  Y.)  181 ;  Dodge  v.  Colby,  108  N.  Y. 
445,  15  N.  E.  703;  Merriman  v.  McCormick  Co.,  86  Wis.  142,  56 
N.  W.  743.  The  entire  cause  of  action  was  local.  The  land  alleged 
to  have  been  trespassed  upon  being  in  West  Virginia,  the  action  could 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §  59. 

2  A  portion  of  the  opinion  is  omitted. 


WRONGFULNESS   BY   LEX   LOCI  123 

not  be  maintained  in  Ohio.  The  Circuit  Court  of  the  United  States, 
sitting  in  Ohio,  had  no  jurisdiction  of  the  cause  of  action,  and  for 
this  reason,  if  for  no  other,  rightly  ordered  the  case  to  be  stricken  from 
its  docket,  although  no  question  of  jurisdiction  had  been  made  by  de- 
murrer or  plea.  British  South  Africa  Co.  v.  Companhia  de  Mocam- 
bique,  [1893]  App.  Cas.  602,  621;  Weidner  v.  Rankin,  26  Ohio  St. 
522;  Youngstown  v.  Moore,  30  Ohio  St.  133;'  Ohio  Rev.  St.  §  5064. 
Judgment  affirmed.8 


II.  Wrongfulness  by  Lex  Loci  * 


LE  FOREST  v.  TOLMAN. 

(Supreme  Judicial  Court  of  Massachusetts,  1S75.    117  Mass.  109,  19  Am. 

Rep.  400.) 

GRAY,  C.  J.8  In  order  to  maintain  an  action  of  tort,  founded  upon 
an  injury  to  person  or  property,  and  not  upon  a  breach  of  contract, 
the  act  which  is  the  cause  of  the  injury  and  the  foundation  of  the 
action  must  at  least  be  actionable  or  punishable  by  the  law  of  the 
place  in  which  it  is  done,  if  not  also  by  the  law  of  the  place  in  which 
redress  is  sought.  Smith  v.  Condry,  1  How.  28,  11  L.  Ed.  35,  s.  c.  17 
Pet.  20;  The  China,  7  Wall.  53,  64,  19  L.  Ed.  67;  Blad's  Case,  3 
Swanst  603 ;  Blad  v.  Bamfield,  3  Swanst.  604 ;  General  Steam  Navi- 
gation Co.  v.  Guillou,  11  M.  &  W.  877;  Phillips  v.  Eyre,  L.  R.  4  Q. 
B.  225,  239,  and  L.  R.  6  Q.  B.  1 ;  The  Halley,  L.'R.  2  Adm.  3,  and 
L.  R.  2  P.  C.  193 ;  Stout  v.  Wood,  1  Blackf .  (Ind.)  71 ;  Wall  v.  Hos- 
kins,  27  N.  C.  177;  Mahler  v.  Norwich  &  New  York  Transportation 
Co.,  35  N.  Y.  352;  Needham  v.  Grand  Trunk  Railway,  38  Vt.  294; 
Richardson  v.  New  York  Central  Railroad,  98  Mass.  85. 

In  the  case  at  bar,  the  injury  sued  for  was  done  to  the  plaintiff  in 
New  Hampshire  by  a  dog  owned  and  kept  by  the  defendant  in  Massa- 
chusetts. Such  an  action  could  not  be  maintained  at  common  law, 
without  proof  that  the  defendant  knew  that  his  dog  was  accustomed 
to  attack  and  bite  mankind.  Popplewell  v.  Pierce,  10  Cush.  509; 
Pressey  v.  Wirth,  3  Allen/  191.  No  evidence  of  such  knowledge,  or 
of  the  law  of  New  Hampshire,  was  introduced  at  the  trial.  Nor  is  it 
contended  that  the  defendant  would  be  liable  to  any  action  or  indict- 
ment by  the  laws  of  that  state. 

s  Compare  Stone  v.  U.  S.,  167  U.  S.  178,  182,  17  Sup.  Ct.  778,'  42  L.  Ed.  127 
(1897)  where  it  is  pointed  out  that  the  principal  case  proceeded  on  the  theory 
that  the  allegations  of  the  petition  presented  a  single  cause  of  action  in  which 
the  trespass  upon  the  land  was  the  principal  thing  and  the  conversion  of  the 
property  was  incidental  only. 

*  For  discussion  of  principles,  see  Chapiu  on  Torts,  §  60. 

s  The  statement  of  facts  is  omitted. 


124  CONFLICT  OF  LAWS 

The  plaintiff  relies  upon  the  statute  of  this  commonwealth,  which 
provides  that  "every  owner  or  keeper  of  a  dog  shall  forfeit  to  any 
person  injured  by  it  double  the  amount  of  the  damage  sustained  by 
him,  to  be  recovered  in  an  action  of  tort."  Gen.  St.  1860,  c.  88,  §  59. 
This  statute  is  not  a  penal,  but  a  remedial,  statute,  giving  all  the  dam- 
ages to  the  person  injured.  Mitchell  v.  Clapp,  12  Cush.  278.  It  does 
not  declare  the  owning  or  keeping  of  a  dog  to  be  unlawful,  but  that 
if  the  dog  injures  another  person,  the  owner  or  keeper  shall  be  liable, 
without  regard  to  the  question  whether  he  had  or  had  not  a  license 
to  keep  the  dog.  The  wrong  done  to  the  person  injured  consists  not 
in  the  act  of  the  master  in  owning  or  keeping,  or  neglecting  to  re- 
strain, the  dog,  but  in  the  act  of  the  dog  for  which  the  master  is  re- 
sponsible. 

The  defendant  having  done  no  wrongful  act  in  this  commonwealth, 
and  the  injury  for  which  the  plaintiff  seeks  to  recover  damages  having 
taken  place  in  New  Hampshire,  and  not  being  the  subject  of  action 
or  indictment  by  the  laws  of  that  state,  this  action  cannot  be  main- 
tained. 

Exceptions  sustained. 


PART  II 

SPECIFIC  TORTS— INFRINGEMENT  OF  PERSONAL 

SECURITY 


I.  Assault1 


BEACH  v.  HANCOCK. 

(Supreme  Court  of  Judicature  of  New  Hampshire,  1853.    27  N.  H.  223, 

59  Am.  Dec.  373.) 

Trespass  for  an  assault.  At  the  trial  it  appeared  that  the  plaintiff 
and  the  defendant  were  engaged  in  an  angry  altercation,  when  the 
defendant  stepped  into  his  office  and  brought  forth  a  gun,  which  he 
pointed  in  an  excited  and  threatening  manner  at  the  plaintiff,  who  was 
standing  three  or  four  rods  distant.  The  gun  was  not  loaded,  but  this 
fact  was  not  known  to  the  plaintiff.  The  evidence  tended  to  show  that 
the  defendant  snapped  the  gun  twice  at  the  plaintiff.  The  court  ruled 
that  pointing  a  gun,  in  an  angry  and  threatening  manner,  at  a  person 
three  or  four  rods  distant,  who  was  ignorant  whether  the  gun  was 
loaded  or  not,  was  an  assault,  though  it  should  appear  that  the  gun 
was  not  loaded,  and  that  it  made  no  difference  whether  the  gun  was 
snapped  or  not.  The  court  further  instructed  the  jury  that,  in  assessing 
the  damages,  it  was  their  right  and  duty  to  consider  the  effect  which 
the  finding  of  light  or  trivial  damages  would  have  to  encourage  dis- 
turbances and  breaches  of  the  peace.  Defendant  excepted  to  both  of 
these  instructions. 

GILCHRIST,  C.  J.2  *  *  *  One  of  the  most  important  objects  to 
be  attained  by  the  enactment  of  laws  and  the  institutions  of  civilized 
society  is,  that  each  of  us  shall  feel  secure  against  unlawful  assaults. 
Without  such  security  society  loses  most  of  its  value.  Peace  and  order 
and  domestic  happiness,  inexpressibly  more  precious  than  mere  forms 
of  government,  cannot  be  enjoyed  without  the  sense  of  perfect  security. 
We  have  a  right  to  live  in  society  without  being  put  in  fear  of  per- 
sonal harm.  But  it  must  be  a  reasonable  fear  of  which  we  complain. 
And  surely  it  is  not  unreasonable  for  a' person  to  entertain  a  fear  of 
personal  injury  when  a  pistol  is  pointed  at  him  in  a  threatening  man- 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §  61. 

2  The  statement  of  the  case  is  abridged  and  a  portion  of  the  opinion  omitted. 

(125) 


126          SPECIFIC  TORTS — INFRINGEMENT  OF  PERSONAL  SECURITY 

ner,  when,  for  aught  he  knows,  it  may  be  loaded,  and  may  occasion  his 
immediate  death.  The  business  of  the  world  could  not  be  carried  on 
with  comfort  if  such  things  could  be  done  with  impunity. 

We  think  the  defendant  guilty  of  an  assault,  and  we  perceive  no 
reason  for  taking  any  exception  to  the  remarks  of  the  court.  Finding 
trivial  damages  for  breaches  of  the  peace,  damages  incommensurate 
with  the  injury  sustained,  would  certainly  lead  the  ill  disposed  to  con- 
sider an  assault  as  a  thing  that  might  be  committed  with  impunity. 
But,  at  all  events,  it  was  proper  for  the  jury  to  consider  whether  such 
a  result  would  or  would  not  be  produced.  Flanders  v.  Colby,  28  N. 
H.  34. 

Judgment  on  the  verdict. 


TUBERVILLE  v.  SAVAGE. 

(Court  of  King's  Bench,  1669.     1  Mod.  3.) 

Action  of  assault,  battery,  and  wounding.  The  evidence  to  prove  a 
provocation  was  that  the  plaintiff  put  his  hand  upon  his  sword  and 
said,  "If  it  were  not  assize  time,  I  would  not  take  such  language  from 
you."  The  question  was  if  that  were  an  assault.  The  court  agreed 
that  it  was  not;  for  the  declaration  of  the  plaintiff  was  that  he  would 
not  assault  him,  the  judges  being  in  town;  and  the  intention  as  well 
as  the  act  makes  an  assault.  Therefore,  if  one  strike  another  upon 
the  hand  or  arm  or  breast,  in  discourse,  it  is  no  assault,  there  being  no 
intention  to  assault;  but  if  one,  intending  to  assault,  strike  at  an- 
other and  miss  him,  this  is  an  assault ;  so  if  he  hold  up  his  hand  against 
another  in  a  threatening  manner  and  say  nothing,  it  is  an  assault. 


II.  Battery 
1.  DEFENSE  OF  PERSON  • 


THOMASON  v.  GRAY. 
(Supreme  Court  of  Alabama,  1886.    82  Ala.  291,  3  South.  38.) 

This  action  was  brought  by  Roland  B.  Gray,  against  Robert  P. 
Thomason,  to  recover  damages  for  an  assault  and  battery;  and  was 
commenced  on  the  22d  of  March,  1886.  The  cause  was  tried  on  issue 
joined  on  the  plea  of  not  guilty,  and  resulted  in  a  verdict  for  the  plain- 
tiff, "for  $200  compensatory  damages,"  on  which  judgment  was  ren- 
dered in  his  favor.  On  the  trial,  as  appears  from  the  bill  of  exceptions, 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  63  (A). 


BATTERY  127 

the  evidence  showed  that  the  difficulty  between  the  parties  occurred  in 
December,  1885,  at  the  defendant's  store  or  place  of  business  in  the 
town  of  Oxford ;  that  the  plaintiff  had  gone  to  town  in  a  wagon,  with 
a  load  of  apples  and  other  produce  for  sale,  and  having  bargained 
with  the  defendant  for  the  sale  of  some  apples,  went  to  his  house 
or  place  of  business  to  deliver  them ;  that  a  dispute  there  arose  between 
them,  in  which  each  used  abusive  words  towards  the  other ;  and  which 
resulted  in  a  personal  rencontre,  the  plaintiff  being  struck  in  the  back 
with  a  piece  of  scantling,  and  badly  cut  in  the  neck.  As  to  the  cir- 
cumstances attending  the  difficulty,  the  evidence  was  conflicting;  the 
testimony  of  each  party  tending  to  show  that  the  other  was  the  ag- 
gressor. The  plaintiff,  according  to  the  evidence  adduced  by  him,  "was 
a  youth  fifteen  or  sixteen  years  old,  and  weighed  about  108  pounds, 
while  the  defendant  was  a  good-sized  man."  For  the  purpose  of  show- 
ing that  no  punitive  damages  ought  to  be  recovered  against  him, 
the  defendant  offered  in  evidence  an  indictment  found  against 
him  on  account  of  this  same  assault  and  battery  on  the  plaintiff,  which 
prosecution  was  still  pending  and  undetermined ;  and  he  duly  except- 
ed  to  the  ruling  of  the  court  excluding  this  evidence. 

The  court  gave  the  following  charges  to  the  jury  on  the  request 
of  the  plaintiff:  (1)  "Even  if  the  jury  believe  from  the  evidence  that 
the  plaintiff  was  in  fault  in  bringing  on  the  difficulty;  yet  if  they  be- 
lieve from  the  evidence  that  the  defendant's  retaliation  was  dispropor- 
tionate to  and  excessive  of  the  necessity  or  provocation  received,  they 
must  find  for  the  plaintiff."  (2)  "If  the  jury  believe  from  all  the  evi- 
dence that  the  defendant  brought  on  the  difficulty,  then  he  cannot  in- 
voke the  doctrine  of  self-defence."  (3)  "If  the  jury  believe  from  all 
the  evidence  that  the  defendant  unlawfully,  wantonly  and  intentionally 
assaulted  the  plaintiff  with  a  knife  and  cut  him,  they  may,  in  addition 
to  actual  damages,  assess  exemplary  or  punitive  damages  as  a  punish- 
ment to  the  defendant  if  the  assault  was  attended  with  circumstances  of 
aggravation."  (4)  "The  jury  may  look  to  the  size  and  age  of  the  par- 
ties, if  proved  in  determining  the  amount  of  force  necessary  to  be 
used  by  the  defendant  in  putting  plaintiff  out  of  the  house."  The  de- 
fendant duly  excepted  to  each  of  these  charges,  and  he  here  assigns 
them  as  error,  together  with  the  exclusion  of  the  evidence  offered  and 
excluded. 

SUMMERVILLE,  J.  There  may  no  doubt  be  cases  of  assault  and  bat- 
tery, as  well  as  mere  assault  which  would  sustain  a  civil  action  for 
damages,  and  yet  not  be  punishable  criminally  by  indictment.  An  as- 
sault with  an  unloaded  gun  or  pistol  might  be  one  of  this  character; 
as  would  also  a  battery  resulting  from  the  fault  or  negligence  of  the 
defendant,  without  any  criminal  intent.  2  Green.  Ev.  §  85 ;  Chap- 
man v.  State,  78  Ala.  463,  56  Am.  Rep.  42.  The  only  difference  as  to 
proof  would  be  that  a  civil  action  might  be  sustained  by  a  preponder- 
ance of  evidence,  producing  the  proper  conviction  in  the  mind  of  the 


128          SPECIFIC  TORTS INFRINGEMENT   OF   PERSONAL   SECURITY 

jury,  and  a  criminal  indictment  only  by  proving  the  defendant's  guilt 
beyond  a  reasonable  doubt.  But,  however  this  may  be,  it  is  very  clear 
that  in  all  cases,  where  a  defendant  is  guilty  of  a  criminal  or  indict- 
able assault  and  battery,  a  civil  action  for  damages  would,  on  the  same 
state  of  facts,  lie  against  him  in  favor  of  the  party  assaulted  and  beat- 
en. Self-defence  is  an  excuse  for  the  one  as  much  as  the  other,  and 
this  must  be  so  under  precisely  the  same  principles.  In  civil  actions, 
as  well  as  in  criminal,  the  rule  obtains  that  if  the  defendant  was  the 
aggressor,  and  brought  on  the  difficulty,  he  cannot  invoke  the  doctrine 
of  self-defence,  because  it  would  be  allowing  him  to  take  advantage 
of  his  own  wrong.  So  the  doctrine  being  based  on  necessity,  the  party 
resorting  to  it  can  go  no  further,  in  doing  damage  or  violence  to  his 
adversary,  than  what  is  reasonably  necessary  and  unavoidable.  His 
retaliation  cannot  innocently  be  disproportionate  to  the  necessities  of 
the  occasion,  or  excessive  of  the  provocation  received.  It  could  only 
lead  to  confusion  and  uncertainty,  to  attempt  laying  down  a  different 
rule  for  these  two  classes  of  cases.  The  first  and  second  charges  given 
by  the  court  at  the  request  of  the  plaintiff  were  in  full  harmony  with 
these  views,  and  were  properly  given. 

It  was  competent  for  the  jury  to  look  at  the  age  and  relative  size 
of  the  parties,  if  satisfactorily  proven,  in  determining  the  amount  of 
force  which  was  necessary  to  be  used  by  the  defendant  in  putting  the 
plaintiff  off  of  his  premises.  The  jury  might  more  readily  conclude 
that  a  man  of  proportionally  large  size  would  be  more  culpable  in  re- 
sorting to  the  use  of  a  knife  for -such  a  purpose  than  a  relatively  small 
man  might  be  under  like  circumstances.  The  court  did  not  err  in 
giving  the  fourth  charge  to  the  jury. 

The  other  rulings  of  the  court  affect  only  the  recovery  of  exemplary 
damages ;  and  these  we  need  not  consider,  for  the  reason  that  the  ver- 
dict of  the  jury  and  judgment  of  the  court  show  expressly  a  recovery 
only  for  compensatory  damages.  If  error,  therefore,  which  we  do 
not  decide,  such  rulings  would  be  error  without  injury.  Affirmed. 


2.  DEFENSE  OF  PROPERTY* 


SCRIBNER  v.  BEACH. 

(Supreme  Court  of  New  York,  1847.    4  Denio,  448,  47  Am.  Dec.  265.) 

Trespass  for  assaulting,  beating  and  wounding  the  plaintiff.  Plea 
not  guilty,  with  notice  of  son  assault  demesne,  and  that  the  assault 
was  committed  in  the  defence  of  the  defendant's  personal  property, 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  63  (B). 


BATTERY  129 

namely,  a  pit  of  charcoal  and  a  coal  rake.  The  trial  took  place  at  the 
Greene  circuit  in  May,  1844,  before  Parker,  Cir.  J. 

It  appeared  that  the  affair  which  gave  rise  to  the  action  happened 
in  August,  1842,  on  a  piece  of  land  in  Catskill,  of  which  the  defendant 
had  been  in  possession  about  three  years  before.  He  removed  to  Her- 
kimer  county  and  the  plaintiff-  succeeded  to  the  occupancy  of  the  land, 
and  had  burned  a  coal  pit  upon  it,  and  was  engaged  in  taking  the  coal 
to  market.  While  he  was  absent  for  that  purpose,  the  defendant  came 
to  the  pit  and  commenced  raking  out  the  coal  with  a  rake  he  found 
there,  having  a  wagon  in  readiness  to  take  the  coal  away.  While  thus 
engaged  the  plaintiff  came  there  and  asked  the  defendant  what  he  was 
doing.  Defendant  said  if  he  came  there  he  would  show  him.  Upon 
this  the  plaintiff  took  hold  of  the  rake  with  a  view  of  taking  it  from 
the  defendant,  who  letting  go,  with  one  hand  knocked  the  plaintiff 
down.  As  he  arose  he  again  took  hold  of  the  rake,  but  the  defendant 
pulled  it  away,  and  with  it  aimed  a  blow  at  the  plaintiff's  head,  which 
the  latter  sought  to  prevent  by  putting  up  his  hand.  The  rake  struck 
his  arm  near  the  wrist  and  fractured  the  bone. 

The  defendant  offered  to  show  that  he  had  title  to  the  land  upon 
which  the  coal  pit  was  burned,  which  was  uncultivated  and  unimprov- 
ed; and  that  the  coal  was  made  from  his  wood  cut  upon  that  land. 
The  plaintiff's  counsel  objected  to  this  evidence,  and  the  objection  was 
sustained  and  the  evidence  excluded.  Verdict  for  the  plaintiff  $150. 
The  defendant  moves  for  a  new  trial  on  a  case. 

By  the  Court,  JEWETT,  J.  Self-defence  is  a  primary  law  of  nature, 
and  it  is  held  an  excuse  for  breaches  of  the  peace  and  even  for  homi- 
cide itself.  But  care  must  be  taken  that  the  resistance  does  not  exceed 
the  bounds  of  mere  defence,  prevention  or  recovery,  so  as  to  become 
vindictive ;  for  then  the  defender  would  himself  become  the  aggressor. 
The  force  used  must  not  exceed  the  necessity  of  the  case.  Elliott  v. 
Brown,  2  Wend.  497,  20  Am.  Dec.  644 ;  Gates  v.  Lounsbury,  20  John. 
427 ;  Gregory  v.  Hill,  8  T.  R.  299 ;  Baldwin  v.  Hayden,  6  Conn.  453 ;  3 
Bl.  Com.  3  to  5;  1  Hawk.  P.  C.  130;  Cockcroft  v.  Smith,  2  Salk.  642; 
Curtis  v.  Carson,  2  N.  H.  539. 

A  man  may  justify  an  assault  and  battery  in  defence  of  his  lands 
or  goods,  or  of  the  goods  of  another  delivered  to  him  to  be  kept. 
Hawk.  P.  C.  b.  1,  c.  60,  §  23;  Seaman  v.  Cuppledick,  Owen's  R.  150. 
But  in  these  cases,  unless  the  trespass  is  accompanied  with  violence,  the 
owner  of  the  land  or  goods  will  not  be  justified  in  assaulting  the  tres- 
passer in  the  first  instance,  but  must  request  him  to  depart  or  desist, 
and  if  he  refuses,  he  should  gently  lay  his  hands  on  him  for  the  pur- 
pose of  removing  him,  and  if  he  resist  with  force,  then  force  suffi- 
cient to  expel  him  may  be  used  in  return  by  the  owner.  Weaver  v. 
Bush,  8  Term  R.  78 ;  Butler's  N.  P.  19 ;  1  East  P.  C.  406.  It  is  other- 
wise if  the  trespasser  enter  the  close  with  force;  in  that  case  the  owner 
may  without  previous  request  to  depart  or  desist,  use  violence  in  re- 
CHAP.CAS.TOKTS — 9 


130          SPECIFIC  TORTS — INFRINGEMENT  OF  PERSONAL  SECURITY 

turn,  in  the  first  instance,  proportioned  to  the  force  of  the  trespasser, 
for  the  purpose,  only,  of  subduing  his  violence. 

"A  civil  trespass,"  says  Holroyd,  J.,  "will  not  justify  the  firing  a 
pistol  at  the  trespasser,  in  sudden  resentment  or  anger.  If  a  person 
takes  forcible  possession  of  another's  close,  so  as  to  be  guilty  of  a 
breach  of  the  peace,  it  is  more  than  a  trespass;  so  if  a  man  with 
force  invades  and  enters  the  dwelling  house  of  another.  But  a  man 
is  not  authorized  to  fire  a  pistol  on  every  invasion  or  intrusion  into 
,his  house;  he  ought,  if  he  has  a  reasonable  opportunity,  to  endeavor 
to  remove  the  trespasser  without  having  recourse  to  the  last  extrem- 
ity." Mead's  Case,  1  Lewin,  C.  C.  185;  Roscoe's  C.  Ev.  262.  The 
rule  is  that,  in  all  cases  of  resistance  to  trespassers,  the  party  resisting 
will  be  guilty  in  law  of  an  assault  and  battery,  if  he  resists  with  such 
violence  that  it  would,  if  death  had  ensued,  have  been  manslaughter. 
Where  one  manifestly  intends  and  endeavors,  by  violence  or  surprise, 
to  commit  a  known  felony  upon  a  man's  person  (as  to  rob,  or  murder, 
or  to  commit  a  rape  upon  a  woman),  or  upon  a  man's  habitation  or 
property  (as  arson  or  burglary),  the  person  assaulted  may  repel  force 
by  force;  and  even  his  servant  then  attendant  on  him,  or  any  other 
person  present,  may  interpose  for  preventing  mischief;  and  in  the 
latter  case  the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with 
him,  may  kill  the  assailant,  for  preventing  the  mischief.  Foster's 
Crown  Law,  273. 

The  resumption  of  the  possession  of  land  and  houses  by  the  mere 
act  of  the  party  is  frequently  allowed.  Thus  a  person  having  a  right 
to  the  possession  of  lands  may  enter  by  force,  and  turn  out  a  person 
who  has  a  mere  naked  possession,  and  cannot  be  made  answerable  in 
damages  to  a  party  who  has  no  right,  and  is  himself  a  tort  feasor. 
Although  if  the  entry  in  such  case  be  with  a  strong  hand,  or  a  multi- 
tude of  people,  it  is  an  offence  for  which  the  party  entering  must 
answer  criminally.  Hyatt  v.  Wood,  4  John.  150,  4  Am.  Dec.  258; 
Sampson  v.  Henry,  13  Pick.  (Mass.)  36. 

In  respect  to  personal  property,  the  right  of  recaption  exists,  with 
the  caution  that  it  be  not  exercised  violently,  or  by  breach  of  the  peace ; 
for,  should  these  accompany  the  act,  the  party  would  then  be  answer- 
able criminally.  But  the  riot,  or  force,  would  not  confer  a  right  on 
a  person  who  had  none ;  nor  would  they  subject  the  owner  of  the  chat- 
tel to  a  restoration  of  it,  to  one  who  was  not  the  owner.  Hyatt  v. 
Wood,  supra.  In  the  case  of  personal  property,  improperly  detained 
or  taken  away,  it  may  be  taken  from  the  house  and  custody  of  the 
wrongdoer,  even  without  a  previous  request ;  but  unless  it  was  seized 
or  attempted  to  be  seized  forcibly,  the  owner  cannot  justify  doing 
any  thing  more  than  gently  laying  his  hands  on  the  wrongdoer  to 
recover  it.  Weaver  v.  Bush,  supra;  Com.  Dig.  Pleader,  3,  M.  17; 
Spencer  v.  McGowen,  13  Wend.  256.  . 

In  one  branch  of  the  defence  the  defendant  set  up  son  assault  de- 
mesne. That  was  overthrown  by  evidence  showing  a  manifest  dis- 


BATTERY  131 

proportion  between  the  battery  given  and  the  first  assault.  Even  a 
wounding  was  proved.  The  defendant  also  relied  upon  a  defence  of 
his  possession  of  certain  personal  property,  which  he  insisted  was  in- 
vaded by  the  plaintiff,  and  in  the  defence  of  which  he  committed  the 
assault.  To  sustain  this  defence  he  proposed  to  prove  that  the  coal 
pit  was  on  new  and  unimproved  land  to  which  he  had  title,  and  that 
the  wood  from  which  the  coal  was  made  was  cut  from  this  land  with- 
out any  authority  from  him;  but  this  evidence  was  rejected.  The 
object  of  strife  between  the  parties  was  the  possession  of  the  rake, 
not  the  coal.  The  plaintiff  is  not  shown  to  have  committed  a  single 
act  tending  to  disturb  the  defendant  in  his  possession  of  the  latter. 
The  ownership  of  the  coal,  therefore,  was  not  a  material  fact.  But 
admitting  that  the  defendant  had  a  legal  title  to  the  coal,  and  that 
the  plaintiff's  object  in  regaining  possession  of  the  rake  was  to  use  it 
as  a  means  of  retaking  the  possession  of  the  coal,  still,  the  defendant 
could  not  justify  the  wounding  merely  in  defence  of  his  possession. 
Gregory  v.  Hill,  supra.  Unless  the  plaintiff  first  attempted  forcibly 
to  take  the  coal,  of  which  there  was  no  proof,  I  think  the  evidence 
was  immaterial,  and  was  properly  overruled. 
New  trial  denied.5 


3.  RECAPTION  AND  ENTRY 
(A)  Personal  Property  * 


COMMONWEALTH  v.  DONAHUE. 

(Supreme  Judicial  Court  of  Massachusetts,  1889.     148  Mass.  529,  20  N.  E.  171, 
2  L.  R.  A.  623,  12  Am.  St.  Rep.  591.) 

HOLMES,  J.  This  is  an  indictment  for  robbery,  in  which  the  defend- 
ant has  been  found  guilty  of  an  assault.  The  evidence  for  the  com- 
monwealth was  that  the  defendant  had  bought  clothes  amounting  to 
$21.55  of  one  Mitchelman,  who  called  at  the  defendant's  house  by  ap- 
pointment for  his  pay;  that  some  discussion  arose  about  the  bill, 
and  that  the  defendant  went  up  stairs,  brought  down  the  clothes, 
placed  them  on  a  chair  and  put  $20  on  a  table,  and  told  Mitchelman 
that  he  could  have  the  money  or  the  clothes;  that  Mitchelman  took 
the  money,  and  put  it  in  his  pocket,  and  told  the  defendant  he  owed 
him  $1.55,  whereupon  the  defendant  demanded  his  money  back,  and, 
on  Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and 
choked  him,  until  Mitchelman  gave  him  a  pocketbook  containing  $29. 
The  defendant's  counsel  denied  the  receiving  of  the  pocketbook,  and 

5  Compare  Hannabalson  v.  Sessions,  infra,  p.  180. 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  63  (C). 


132         SPECIFIC  TORTS INFRINGEMENT  OF  PERSONAL  SECURITY 

said  that  he  could  show  that  the  assault  was  justifiable  under  the  cir- 
cumstances of  the  case,  as  the  defendant  believed  that  he  had  a  right 
to  recover  his  own  money  by  force,  if  necessary.  The  presiding  jus- 
tice stated  that  he  should  be  obliged  to  rule  that  the  defendant  would 
not  be  justified  in  assaulting  Mitchelman  to  get  his  own  money,  and 
that  he  should  rule  as  follows :  "If  the  jury  are  satisfied  that  the  de- 
fendant choked  and  otherwise  assaulted  Mitchelman,  they  would  be 
warranted  in  finding  the  defendant  guilty,  although  the  sole  motive 
of  the  defendant  was  by  this  violence  to  get  from  Mitchelman  by 
force  money  which  the  defendant  honestly  believed  to  be  his  own." 
Upon  this  the  defendant  saved  his  exceptions,  and  declined  to  intro- 
duce evidence.  The  jury  were  instructed  as  stated,  and  found  the 
defendant  guilty. 

On  the  evidence  for  the  commonwealth,  it  appeared,  or,  at  the  low- 
est, the  jury  might  have  found,  that  the  defendant  offered  the  $20  to 
Mitchelman  only  on  condition  that  Mitchelman  should  accept  that  sum 
as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
money,  and  at  the  same  moment,  or  just  afterwards,  as  part  of  the 
same  transaction,  repudiated  the  condition.  If  this  was  the  case,  since 
Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no  right  to 
that  particular  money  except  on  the  conditions  on  which  it  was  offered 
(Commonwealth  v.  Stebbins,  8  Gray,  492),  he  took  the  money  wrong- 
fully from  the  possession  of  the  defendant;  or  the  jury  might  have 
found  that  he  did,  whether  the  true  view  be  that  the  defendant  did 
not  give  up  possession,  or  that  it  was  obtained  from  him  by  Mitchel- 
man's  fraud  (Commonwealth  v.  Devlin,  141  Mass.  423,  431,  6  N.  E. 
64;  Chisser's  Case,  T.  Raym.  275,  276;  Regina  v.  Thompson,  Leigh 
&  Cave,  225 ;  Regina  y.  Stanley,  12  Cox,  C.  C.  269 ;  Regina  v.  Rod- 
way,  9  C.  &  P.  784;  Rex  v.  Williams,  6  C.  &  P.  390;  2  East,  P.  C. 
c.  16,  §§  110-113).  See  Regina  v.  Cohen,  2  Denn.  C.  C/249,  and 
cases  infra.  The  defendant  made  a  demand,  if  that  was  necessary — 
which  we  do  not  imply — before  using  force.  Green  v.  Goddard,  2 
Salk.  641 ;  Polkinhorn  v.  Wright,  8  Q.  B.  (N.  S.)  197 ;  Commonwealth 
v.  Clark,  2  Mete.  23,  25 ;  and  cases  infra.  It  is  settled  by  ancient 
and  modern  authority  that  under  such  circumstances  a  man  may  de- 
fend or  regain  his  momentarily  interrupted  possession  by  the  use  of 
reasonable  force,  short  of  wounding,  or  the  employment  of  a  danger- 
ous weapon.  Commonwealth  v.  Lynn,  123  Mass.  218;  Common- 
wealth v.  Kennard,  8  Pick.  133;  Anderson  v.  State,  6  Bax.  (Tenn.) 
608;  State  v.  Elliot,  11  N.  H.  540,  545 ;  Rex  v.  Milton,  Mood.  &  Malk. 
107;  Y.  B.  9  Ed.  IV.  28,  pi.  42;  19  Hen.  VI.  31,  pi.  59;  21  Hen.  VI. 
27,  pi.  9.  See  Seaman  v.  Cuppledick,  Owen,  150;  Taylor  v.  Mark- 
ham,  Cro.  Jac.  224,  s.  c.  Yelv.  157,  1  Brownl.  215;  Shingleton  v. 
Smith,  Lutw.  1481,  1483;  2  Inst.  316;  Finch,  Law,  203;  2  Hawk.  P. 
C.  c.  60,  §  23;  3  Bl.  Com.  121.  To  this  extent  the  right  to  protect 
one's  possession  has  been  regarded  as  an  extension  of  the  right  to  pro- 
tect one's  person,  with  which  it  is  generally  mentioned.  Baldwin  v. 


BATTERY  133 

Hayden,  6  Conn.  453;  Y.  B.  19  Hen.  VI.  31,  pi.  59;  Rogers  v.  Spence, 
13  M.  &  W.  571,  581 ;  2  Hawk.  P.  C.  c.  60,  §  23 ;  3  Bl.  Com.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defense,  but  involve 
other  considerations  of  policy.  It  has  been  held  that  even  where  a  con- 
siderable time  had  elapsed  between  the  wrongful  taking  of  the  de- 
fendant's property  and  the  assault,  the  defendant  had  a  right  to  re- 
gain possession  by  reasonable  force,  after  demand  upon  the  third  per- 
son in  possession,  in  like  manner  as  he  might  have  protected  it  without 
civil  liability.  Whatever  the  true  rule  may  be,  probably  there  is  no 
difference  in  this  respect  between  the  civil  and  the  criminal  law. 
Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713,  12  C.  B.  (N.  S.)  501,  13  C. 
B.  (N.  S.)  844,  11  H.  L.  Cas.  621 ;  Commonwealth  v.  McCue,  16  Gray, 
226,  227.  The  principle  has  been  extended  to  a  case  where  the  de- 
fendant had  yielded  possession  to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504,  46  Am.  Dec. 
167.  See  Johnson  v.  Perry,  56  Vt.  703,  48  Am.  Rep.  826.  On  the 
other  hand,  a  distinction  has  been  taken  between  the  right  to  main- 
tain possession  and  the  right  to  regain  it  from  another  who  is  peace- 
ably established  in  it,  although  the  possession  of  the  latter  is  wrongful. 
Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  (Ky.)  81,  12  Am.  Dec.  273.  See 
Barnes  v.  Martin,  15  Wis.  240,  82  Am.  Dec.  670;  Andre  v.  Johnson, 
6  Blackf.  (Ind.)  375;  Davis  v.  Whitridge,  2  Strob.  (S.  C.)  232;  3.B1. 
Com.  4.  It  is  unnecessary  to  decide  whether  in  this  case,  if  Mitchel- 
man  had  taken  the  money  with  a  fraudulent  intent,  but  had  not  repudi- 
ated the  condition  until  afterwards,  the  defendant  would  have  had 
any  other  remedy  than  to  hold  him  to  his  bargain,  if  he  could,  even 
if  he  knew  that  Mitchelman  still  had  the  identical  money  upon  his 
person.  If  the  force  used  by  the  defendant  was  excessive,  the  jury 
would  have  been  warranted  in  finding  him  guilty.  Whether  it  was 
excessive  or  not  was  a  question  for  them ;  the  judge  could  not  rule  that 
it  was  not,  as  matter  of  law.  Commonwealth  v.  Clark,  2  Mete.  23. 
Therefore  the  instruction  given  to  them,  taken  only  literally,  was  cor- 
rect. But  the  preliminary  statement  went  further,  and  was  erroneous ; 
and,  coupling  that  statement  with  the  defendant's  offer  of  proof,  and 
his  course  after  the  rulings,  we  think  it  fair  to  assume  that  the  in- 
struction was  not  understood  to  be  limited,  or  indeed  to  be  directed, 
to  the  case  of  excessive  force,  which,  so  far  as  appears,  had  not  been 
mentioned,  but  that  it  was  intended  and  understood  to  mean  that  any 
assault  to  regain  his  own  money  would  warrant  finding  the  defendant 
guilty.  Therefore  the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery  had 
been  persisted  in,  and  the  difficulties  which  we  have  stated  could 
have  been  got  over,  we  might  have  had  to  consider  cases  like  Regina 


13l          SPECIFIC  TORTS INFRINGEMENT  OF  PERSONAL   SECURITY 

v.  Boden,  1  C.  &  K.  395,  397;  Regina  v.  Hammings,  4  F.  &  F.  50; 
State  v.  Holly  way,  41  Iowa,  200,  20  Am.  Rep.  586.  Compare  Common- 
wealth v.  Stebbins,  8  Gray,  492;  Commonwealth  v.  McDuffy,  126 
Mass.  467.  There  is  no  question  here  of  the  effect  of  a  reasonable 
but  mistaken  belief  with  regard  to  the  facts.  State  v.  Nash,  88  N.  C. 
618.  The  facts  were  as  the  defendant  believed  them  to  be. 
Exceptions  sustained. 


(B)  Real  Property  T 


BRISTOR  v.  BURR. 

(Court  of  Appeals  of  New  York,  1890.     120  N.  Y.  427,  24  N.  E.  937,  8 
L.  R.  A.  710.) 

BRADLEY,  J.  The  action  was  brought  to  recover  for  an  alleged  as- 
sault upon  and  forcible  eviction  of  the  plaintiff  from  a  house  in  which 
he  was  residing,  and  for  the  alleged  conversion  of  certain  of  his  per- 
sonal property,  then  in  the  house  at  Spring  Valley  in  the  county  of 
Rockland.  The  plaintiff  was  a  member  of  the  Newark  conference  of 
the  Methodist  Episcopal  Church,  by  which  he  was  stationed  as  a 
preacher  in  March,  1885,  at  Spring  Valley,  and  continued  to  preach 
in  the  church  at  that  place  until  the  15th  of  January,  1886,  when  he 
was  suspended  from  all  ministerial  services  and  church  privileges. 
This  was  done  in  accordance  with  the  rules  and  discipline  of  the  Meth- 
odist Church  and  was  effectual  as  a  suspension  until  the  then  next 
annual  conference  in  March  following.  From  the  time  he  went  to 
that  place  to  preach,  the  plaintiff,  with  his  family  resided  in  a  house 
which  had,  for  several  years,  been  occupied  by  the  Methodist  minis- 
ters as  a  parsonage.  On  March  17,  1886,  the  defendants  forcibly  eject- 
ed the  plaintiff  from  the  house.  It  is  of  that  act  and  the  alleged  con- 
version of  his  goods  then  in  the  parsonage  that  the  plaintiff  complains. 
The  trial  court  held,  as  matter  of  law,  and  instructed  the  jury,  that 
the  eviction  of  the  plaintiff  was  illegal,  and  that  upon  that  branch  of 
the  case  the  question  was  one  of  damages  only  for  them  to  determine. 
And  upon  the  exception  to  that  instruction  and  exception  to  the  re- 
fusal of  the  court  to  charge  and  submit  to  the  jury,  as  requested  by 
the  defendant's  counsel,  certain  propositions  bearing  upon  the  subject 
arise  the  main  questions  presented  for  consideration.  They  pertained, 
not  only  to  the  relation  of  the  plaintiff  to  the  premises,  but  to  the  per- 
sons assuming  to  act  as  trustees  of  the  church  and  to  the  right  of  the 
trustees  to  assume  any  control  of  the  parsonage. 

Although  it  was  not  directly  proved  that  the  Spring  Valley  Church 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  63  (C). 


BATTEEY  135 

was  a  corporation,  it  may,  from  what  did  appear,  be  inferred  and  as- 
sumed that  it  was  such,  as  no  question  was  raised  to  the  contrary.  The 
temporalities  belonging  to  the  church  were  under  the  control  of  the 
trustees.  Laws  of  1813,  c.  60,  §  4.  The  parsonage  was  owned  by  the 
Mutual  Life  Insurance  Company,  and  was  held  for  a  parsonage  under 
a  demise  from  that  company,  and  whether  it  was  rented  to  the  trustees 
or  to  a  society  known  as  the  Ladies'  Guild  was  one  of  the  questions 
upon  which  evidence  was  given.  While  the  defendants  contended  that 
the  church  or  the  trustees  of  it,  as  such,  were  tenants  of  the  insurance 
company,  it  was  claimed  on  the  part  of  the  plaintiff  that  such  society 
rented  the  premises  and  that  it  was  not  within  the  control  of  the 
trustees.  If  this  society  could  be  treated  as  an  independent  one,  out- 
side of  the  authority  of  the  church,  and  the  fact  as  to  where  the  ten- 
ancy from  the  insurance  company  was  located  became  material,  there 
would,  upon  the  evidence,  have  been  a  question  for  the  jury.  It  is, 
at  least,  very  questionable  whether  that  society  could  be  treated  other- 
wise than  as  an  instrumentality  within  the  church  organization  to  aid 
in  the  accomplishment  of  its  legitimate  objects,  and  for  that  purpose 
a  mere  agency  of  the  religious  corporation.  In  the  view  taken  of  the 
case  the  determination  of  that  question  does  not,  nor  does  the  official 
character  of  those  defendants  who  assumed  to  act  as  trustees  in  what 
they  did,  seem  to  be  essential  here  for  consideration. 

It  sufficiently  appears  by  the  record  before  us  to  indicate  that  an 
unfortunate  controversy  arose  in  the  church  and  congregation  and  that 
there  was  a  want  of  that  generous  Christian  spirit  which  should  charac- 
terize the  action  of  religious  societies.  But  it  is  not  the  province  of 
the  court  to  deal  with  those  considerations.  It  is  the  legal  aspect  only 
of  the  situation  which  can  have  treatment  here. 

When  the  plaintiff  went  to  Spring  Valley,  pursuant  to  the  direc- 
tion of  the  conference  to  perform  the  services  as  minister  of  the  church 
there,  the  house  was  furnished  to  him  as  a  place  of  residence.  He 
lawfully  went  into  occupancy  of  the  parsonage.  If  that  occupancy 
was  the  actual  possession  of  it  by  him,  at  the  time  of  his  eviction,  the 
defendants  were  chargeable  with  liability  for  assaulting  and  forcibly 
expelling  him  from  the  house.  And  this  was  so,  irrespective  of  the 
mere  right  to  the  possession,  as  in  that  case  there  was  no  justification 
for  the  application  of  such  force  to  eject  the  plaintiff,  although  the 
defendants,  as  trustees,  may  have  had  the  right  to  reduce  the  premises 
to  possession  by  means  of  legal  process  and  proceedings.  Parsons  v. 
Brown,  15  Barb.  590;  Bliss  v.  Johnson,  73  N.  Y.  529;  McMillan  v. 
Cronin,  75  N.  Y.  474.  It  is,  however,  contended  on  the  part  of  the 
defendants  that  the  plaintiff  was  a  mere  servant  of  the  church  and 
that  in  that  relation  only  he  resided  in  the  house.  If  that  were  so, 
and  if  the  trustees  as  lessees  of  the  insurance  company  had  the  control 
of  the  house,  the  plaintiff  had  no  possession  of  it,  and  the  trustees  had 
the  right  to  remove  him  from  it  and  on  his  refusal  to  go  to  use  al) 


136          SPECIFIC  TORTS INFRINGEMENT  OF  PERSONAL  SECURITY 

the  force  essential  to  do  so.  In  such  case  the  possession  would  be 
theirs  and  not  his.  Haywood  v.  Miller,  3  Hill,  90;  Comstock  v. 
Dodge,  43  How  Prac.  97;  Kerrains  v.  People,  60  N.  Y.  221,  19  Am. 
Rep.  158.  But  it  is  difficult  to  see  that  the  relation  of  master  and  serv- 
ant existed  between  the  trustees  of  the  church  they  represented  and 
the  plaintiff.  It  does  not  appear  that  he  was  hired  by  that  religious 
corporation,  or  that  it  assumed  any  legal  obligation  to  pay  him  for 
his  services  as  minister.  He  was  placed  there  by  the  conference  pur- 
suant to  the  regulation  and  discipline  of  that  church  denomination  and 
no  contractual  relation  existed  between  the  Spring  Valley  church  and 
the  plaintiff.  Landers  v.  F.  S.  M.  E.  Church,  97  N.  Y.  120.  This 
church,  being  subject  to  such  disciplinary  regulations,  had  not  within 
itself  legitimately  the  power  to  deny  to  the  plaintiff  when  so  stationed 
there  the  right  to  exercise  his  ministerial  duties  or  to  exclude  him  from 
its  church  edifice  devoted  to  that  service.  People  ex  rel.  v.  Conley, 
42  Hun,  98.  This  it  seems  is  deemed  essential  to  the  maintenance 
of  the  system  of  church  government  and  its  integrity.  And  to  as- 
sure the  application  of  its  property  and  revenues  to  the  uses  of  the 
church  and  purposes  connected  with  it,  the  statute  has  prohibited  their 
diversion  to  other  objects.  Laws  of  1875,  c.  79,  §  4.  The  articles  of 
the  discipline  of  the  Methodist  Episcopal  Church  were  put  in  evi- 
dence, but  are  not  set  forth  in  the  record.  It  may  be  assumed  that 
they  furnished  no  aid  to  the  defendants  in  their  bearing  upon  the  rela- 
tion between  the  local  church  and  its  minister.  While  the  church 
could  not  itself,  through  its  own  officers  exercise  power  over  its  min- 
ister, it  was  not  without  the  means  of  relief  from  his  ministrations 
when  for  sufficient  cause  they  should  become  otherwise  than  reli- 
giously fit  for  or  satisfactory  to  the  congregation.  This  relief,  for  some 
reason  of  no  concern  here,  was  accomplished  through  the  constituted 
authority.  Whether  his  suspension  would  effectually  result  in  the 
severance  of  the  plaintiff's  relation  as  the  minister  of  this  church  was 
dependent  upon  the  action  of  the  annual  conference,  which  was  then 
to  go  into  session  in  the  latter  part  of  March.  This  was  the  situation 
at  the  time  of  his  eviction  from  the  parsonage.  It  evidently  was  con- 
templated that  when  he  ceased  to  be  the  minister  of  the  church  he 
would  leave  the  parsonage.  But  in  the  occupation  of  the  house  his  re- 
lation was  not  that  of  a  servant  of  the  church  or  trustees  in  the  sense 
sought  to  be  applied,  to  render  him  a  trespasser  on  his  refusal  to  leave 
it.  No  other  relation  than  that  of  possession  was  consistent  with  the 
use  and  enjoyment  of  it  as  a  parsonage  in  view  of  his  duties  as  pastor, 
which  are  not  supposed  to  be  wholly  discharged  in  the  public  services 
at  the  church.  Otherwise,  his  occupancy  and  its  privileges  would  be 
at  the'will  of  the  trustees  and  he  be  liable,  or  might  be  subjected  to 
intrusion  at  their  pleasure. 

There  appears  to  have  been  nothing  so  far  as  appears  in  the  circum- 
stances under  which  he  went  into  the  house  or  in  his  relation  to  the 


BATTERY  137 

church  or  its  trustees,  which  so  qualified  his  occupancy  as  to  render  it 
otherwise  than  possession  by  him.  This  is  presumptively  the  relation 
assumed  to  premises  by  a  party  who  lawfully  enters  upon  them  as  a 
place  of  abode,  and  occupies  them  as  such ;  and  any  less  right  than 
that  which  possession  furnishes  is  dependent  upon  some  understand- 
ing, express  or  implied,  denying  such  relation.  None  appears  in  this 
case  so  qualifying  the  character  of  the  occupancy  of  the  plaintiff. 
And  he  had  the  right  to  protection  against  eviction  by  violence  without 
the  aid  of  legal  process.  It  is  unnecessary  to  consider  the  question 
whether  he  was  a  tenant  at  will  and  entitled  to  a  month's  notice,  or 
whether  legal  proceedings  may  have  been  effectually  taken  with  a 
shorter  or  without  any  notice  for  his  removal. 

In  view  of  the  fact  that  the  plaintiff  was  in  actual  possession  of  the 
house  at  the  time  in  question,  the  use  of  the  force  used  by  the  defend- 
ants to  expel  him  from  the  house  was  without  justification. 

Whether  the  plaintiff  had  established  his  alleged  claim  for  the  con- 
version of  the  property  was  treated  as  a  question  of  fact,  which  was 
submitted  to  the  jury.  We  do  not  understand  that  any  question  of  law 
was  raised  by  any  exception  bearing  specially  upon  this  branch  of  the 
case.  Nor  is  it  seen  that  there  was  any  error  in  leaving  that  question 
to  the  jury.  No  other  exceptions  seem  to  require  consideration.  The 
judgment  should  be  affirmed.  All  concur  except  FoLi,ETT,  C.  J.,  dis- 
senting. Judgment  affirmed. 


4.  ENFORCEMENT  OF  DISCIPLINE  8 
SHEEHAN  v.  STURGES. 

(Supreme  Court  of  Errors  of  Connecticut,  1885.     53  Conn.  481,  2  Atl.  841.) 

Action  for  assault  and  battery  tried  to  the  court.  Finding  of  facts, 
with  judgment  for  the  defendant.  The  plaintiff  appeals. 

GRANGER,  J.9  This  is  a  complaint  for  an  assault  and  battery.  The 
defense  is  that  the  plaintiff  was  at  the  time  a  pupil  in  a  school  kept 
by  the  defendant,  that  he  willfully  violated  the  reasonable  rules  of 
the  school  and  disobeyed  the  reasonable  commands  of  the  defendant 
as  his  teacher,  and  that  for  this  misconduct  the  defendant  as  such 
teacher  whipped  him  in  a  reasonable  manner.  The  sole  controversy 
upon  the  trial  was  as  to  the  reasonableness  of  the  punishment  inflicted. 
The  court  found  that  "such  whipping  was  not  unreasonable  or  exces- 
sive and  was  fully  justified  by  the  plaintiff's  misconduct  at  that  time." 

The  extent  and  reasonableness  of  the  punishment  administered  by 

8  For  discussion  of  principles,  see  Chapin  on  Torts,  §  63  (D). 
»  A  portion  of  the  opinion  is  omitted. 


138          SPECIFIC  TORTS INFRINGEMENT   OF   PERSONAL   SECURITY 

a  teacher  to  his  pupil  is  purely  a  question  of  fact.  This  is  too  well 
settled  to  make  the  citation  of  authorities  necessary.  The  finding  of 
the  court  therefore  settles  the  question  as  to  this,  unless  the  court  acted 
upon  improper  evidence. 

The  plaintiff  testified  as  a  witness  in  his  own  behalf,  and  on  his 
cross-examination  the  defendant,  against  the  objection  of  the  plaintiff's 
counsel,  was  allowed  to  ask  him  whether  on  two  former  occasions, 
both  of  them  more  than  a  week  before  the  whipping  in  question,  he 
had  not  assaulted  the  teacher  while  he  was  chastising  him.  And  the 
defendant  afterwards,  in  his  testimony  in  his  own  behalf,  was  allowed, 
against  the  objection  of  the  plaintiff,  to  state  that  the  plaintiff's  con- 
duct in  school  was  habitually  bad,  and  that  on  two  former  occasions, 
one  of  them  about  two  weeks  and  the  other  seven  or  eight  days  before 
the  whipping  in  question,  the  plaintiff  had  assaulted  him  while  he  was 
chastising  him.  The  defendant  was  also  allowed,  on  the  plaintiff's 
cross-examination,  against  objection,  to  inquire  of  him  whether  he 
had  not,  seven  or  eight  days  before  the  whipping  in  question,  put 
stones  in  his  pocket  and  declared  that  he  was  going  to  attack  the  teach- 
er with  them.  The  plaintiff,  in  answer  to  the  inquiry,  denied  that  he 
had  done  so,  and  the  defendant,  against  the  plaintiff's  objection,  was 
allowed  to  show  by  a  witness  that  the  plaintiff  had  so  done.  The  de- 
fendant did  not  inform  the  plaintiff  at  the  time  of  the  whipping  that 
he  was  punishing  him  for  his  past  and  habitual  misconduct. 

We  think  the  court  committed  no  error  in  admitting  the  inquiries  and 
evidence.  The  right  of  the  schoolmaster  to  require  obedience  to  rea- 
sonable rules  and  a  proper  submission  to  his  authority,  and  to  inflict 
corporal  punishment  for  disobedience,  is  well  settled.  *  *  * 

No  precise  rule  can  be  laid  down  as  to  what  shall  be  considered  ex- 
cessive or  unreasonable  punishment.  Reeve's  Dom.  Rel.  288.  Each 
case  must  depend  upon  its  own  circumstances.  In  Commonwealth  v. 
Randall,  4  Gray  (Mass.)  36,  it  is  held  that,  "in  inflicting  corporal  pun- 
ishment, a  teacher  must  exercise  reasonable  judgment  and  discretion, 
and  be  governed  as  to  the  mode  and  severity  of  the  punishment  by 
the  nature  of  the  offense,  and  the  age,  size,  and  apparent  powers  of 
endurance  of  the  pupil."  And  we  think  it  equally  clear  that  he  should 
also  take  into  consideration  the  mental  and  moral  qualities  of  the  pupil, 
and,  as  indicative  of  these,  his  general  behavior  in  school  and  his 
attitude  towards  his  teacher  become  proper  subjects  of  consideration. 

We  think  therefore  that  the  court  acted  properly  in  admitting  evi- 
dence of  the  prior  and  habitual  misconduct  of  the  plaintiff,  and  that  it 
was  perfectly  proper  for  the  defendant,  in  chastising  him,  to  con- 
sider not  merely  the  immediate  offense  which  had  called  for  the  pun- 
ishment, but  the  past  offenses  that  aggravated  the  present  one,  and 
showed  the  plaintiff  to  have  been  habitually  refractory  and  disobedient. 
Nor  was  it  necessary  that  the  teacher  should,  at  the  time  of  inflicting 


FALSE   IMPRISONMENT  139 

the  punishment,  remind  the  pupil  of  his  past  and  accumulating  offenses 
The  pupil  knew  them  well  enough,  without  having  them  brought  fresh- 
ly to  his  notice. 
There  is  no  error.    In  this  opinion  the  other  Judges  concurred. 


III.  False  Imprisonment 10 
SIMPSON  v.  HILU 

(Court  of  King's  Bench,  Nisi  Prius,  1795.     1  Esp.  431.) 

This  was  an  action  of  assault  and  false  imprisonment. 

Plea  of  the  general  issue. 

The  imprisonment  complained  of  was  that  the  defendant  sent  for  a 
constable,  to  whom  he  gave  the  plaintiff  in  charge;  but  the  constable 
never  touched  the  plaintiff,  or  took  her  into  custody,  or  used  any 
words  expressing  that  she  was  a  prisoner;  for  the  defendant,  on 
seeing  her  frightened,  said  to  the  constable,  that  he  would  not  trouble 
him  further  at  that  time ;  and  the  constable  departed. 

Bond,  sergeant,  for  the  plaintiff,  contended,  that  this  was  a  coercion 
of  the  plaintiff's  liberty,  by  reason  of  the  charge ;  for  that  during  that 
interval  she  could  not  go  where  she  pleased ;  and  so  was  an  imprison- 
ment, which  would  support  the  action. 

EYRE,  Chief  Justice.  If  the  constable,  in  consequence  of  the  de- 
fendant's charge,  had  for  one  moment  taken  possession  of  the  plain- 
tiff's person,  it  would  be,  in  point  of  law,  an  imprisonment;  as,  for 
example,  if  he  had  tapped  her  on  the  shoulder,  and  said,  "You  are 
my  prisoner,"  or  if  she  had  submitted  herself  into  his  custody,  such 
would  be  an  imprisonment ;  but  the  merely  giving  her  in  charge,  with- 
out any  taking  possession  of  the  person,  where  nothing  more  passes 
than  merely  the  charge,  is  not,  by  law,  a  false  imprisonment.  And  as. 
in  the  present  instance,  the  constable  did  never  take  her  into  custody, 
and  the  defendant  withdrew  his  charge  almost  as  soon  as  it  was  given, 
such  is  not,  by  law,  an  imprisonment. 


PIKE  v.  HANSON. 
(Superior  Court  of  Judicature  of  New  Hampshire,  1838.    9  N.  H.  491.) 

Trespass,  for  an  assault  and  false  imprisonment  on  the  1st  day  of 
July,  A.  D.  1837.  The  action  was  commenced  before  a  justice  of  the 
peace.  The  defendants  pleaded  severally  the  general  issue.  It  appear- 

10  For  discussion  of  principles,  see  Chapin  on  Torts,  §  64. 


140          SPECIFIC  TORTS INFRINGEMENT  OF   PERSONAL   SECURITY 

ed  in  evidence  that  the  defendants  were  selectmen  of  the  town  of 
Madbury  for  the  year  1836;  that  they  assessed  a  list  of  taxes  upon 
the  inhabitants  of  said  town,  among  whom  was  the  plaintiff,  and  com- 
mitted it  to  Nathan  Brown,  collector  of  said  town,  for  collection. 
Brown,  after  having  given  due  notice  to  the  plaintiff,  being  in  a  room 
with 'her,  called  upon  her  to  pay  the  tax,  which  she  declined  doing  until 
arrested.  He  then  told  her  that  he  arrested  her,  but  did  not  lay  his 
hand  upon  her;  and  thereupon  she  paid  the  tax. 

Upon  this  evidence  the  defendants  objected  that  the  action  could 
not  be  maintained,  because  there  was  no  assault. 

It  did  not  appear  that  the  defendants  had  been  sworn,  as  directed 
by  the  statute  of  January  4,  1833.  A  verdict  was  taken  for  the  plain- 
tiff, subject  to  the  opinion  of  the  court. 

WILCOX,  J.  The  statute  of  January  4,  1833,  2  Laws,  p.  99,  is  im- 
perative in  its  provisions.  It  directs  that  the  selectmen  or  assessors 
who  shall  make  an  appraisal  of  property  for  the  purposes  of  taxation 
shall,-  before  entering  upon  the  duties  of  their  office,  take  and  sub- 
scribe an  oath  in  the  form  prescribed,  the  tenor  of  which  is  that  they 
will  make  a  just  and  true  appraisement  of  all  ratable  estate  subject 
to  the  assessment  of  public  taxes,  at  its  true  value  in  money,  accord- 
ing to  their  best  judgment.  This  provision  of  the  statute  cannot  be 
deemed  merely  directory.  It  was  designed  for  the  protection  and 
security  of  the  citizen  whose  rights  are  in  some  degree  in  the  discretion 
of  the  assessors.  The  legislature  intended,  by  the  special  oath  thus 
required  formally  to  be  taken  and  subscribed  by  the  assessors,  to 
guard  as  far  as  possible  against  all  abuse  of  this  discretion;  and  we 
cannot  dispense  with  so  important  a  requisition.  We  therefore  hold 
that,  as  the  appraisement  was  made  in  a  manner  not  authorized  by 
law,  all  the  proceedings  of  the  defendants  are  void;  and  they  are 
liable  as  trespassers  for  the  forcible  collection  of  this  tax. 

But  it  is  contended  that  in  the  present  case  there  has  been  no  as- 
sault committed,  and  no  false  imprisonment.  Bare  words  will  not 
make  an  arrest;  there  must  be  an  actual  touching  of  the  body;  or, 
what  is  tantamount,  a  power  of  taking  immediate  possession  of  the 
body,  and  the  party's  submission  thereto.  Genner  v.  Sparks,  1  Salk. 
79,  2  Esp.  N.  P.  374.  Where  a  bailiff,  having  a  writ  against  a  per- 
son, met  him  on  horseback,  and  said  to  him,  "You  are  my  prisoner," 
upon  which  he  turned  back  and  submitted,  this  was  held  to  be  a  good 
'arrest,  though  the  bailiff  never  laid  hand  on  him.  But  if,  on  the  bail- 
iff's saying  those  words  he  had  fled,  it  had  .been  no  arrest,  unless  the 
bailiff  had  laid  hold  of  him.  Homer  v.  Battyn,  Buller's  N.  P.  62.  The 
same  doctrine  is  held  in  other  cases.  Russen  v.  Lucas  &  al.,  1  C.  &  P. 
153;  Chinn  v.  Morris,  2  C.  &  P.  361;  Pocock  v.  Moore,  Ryan  & 
Moody,  321 ;  Strout  v.  Gooch,  8  Greenl.  127;  Bissell  v.  Gold,  1  Wend. 
(N.  Y.)  210,  19  Am.  Dec.  480. 

Where,  upon  a  magistrate's  warrant  being  shown  to  the  plaintiff, 


FALSE   IMPRISONMENT  141 

the  latter  voluntarily  and  without  compulsion  attended  the  constable 
who  had  the  warrant  to  the  magistrate,  it  was  held  there  was  no  suffi- 
cient imprisonment  to  support  an  action.  Arrowsmith  v.  Le  Mesurier, 
2  N.  R.  211.  But  in  this  case  there  was  no  declaration  of  any  arrest, 
and  the  warrant  was  in  fact  used  only  as  a  summons.  And  if  the 
decision  cannot  be  sustained  upon  this  distinction,  it  must  be  regarded 
as  of  doubtful  authority. 

Starkie  says  that  in  ordinary  practice  words  are  sufficient  to  con- 
stitute an  imprisonment,  if  they  impose  a  restraint  upon  the  person, 
and  the  plaintiff  is  accordingly  restrained;  for  he  is  not  obliged  to 
incur  the  risk  of  personal  violence  and  insult  by  resisting  until  actual 
violence  be  used.  3  Stark,  Ev.  1448.  This  principle  is  reasonable  in 
itself,  and  is  fully  sustained  by  the  authorities  above  cited.  Nor  does 
it  seem  necessary  that  there  should  be  any  very  formal  declaration 
of  an  arrest.  If  the  officer  goes  for  the  purpose  of  executing  his  war- 
rant, has  the  party  in  his  presence  and  power,  if  the  party  so  under- 
stands it,  and  in  consequence  thereof  submits,  and  the  officer,  in  execu- 
tion of  the  warrant,  takes  the  party  before  a  magistrate,  or  receives 
money  or  property  in  discharge  of  his  person,  we  think  it  is  in  law  an 
arrest,  although  he  did  not  touch  any  part  of  the  body. 

In  the  case  at  bar,  it  clearly  appears  that  the  plaintiff  did  not  intend 
to  pay  the  tax,  unless  compelled  by  an  arrest  of  her  person.  The 
collector  was  so  informed.  He  then  proceeded  to  enforce  the  collec- 
tion of  the  tax — declared  that  he  arrested  her — and  she,  under  that 
restraint,  paid  the  money.  This  is  a  sufficient  arrest  and  imprison- 
ment to  sustain  the  action,  and  there  must,  therefore,  be 

Judgment  on  the  verdict. 


BIRD  v.  JONES. 
(Court  of  King's  Bench,  1845.    7  Q.  B.  742.) 

This  action  was  tried  before  Lord  Denman,  C.  J.,  and  a  verdict  was 
found  for  the  plaintiff.  A  rule  nisi  for  a  new  trial  was  obtained  on 
the  ground  of  misdirection. 

COLERIDGE,  J.  In  this  case,  in  which  we  have  unfortunately  been 
unable  to  agree  in  our  judgment,  I  am  now  to  pronounce  the  opinion 
which  I  have  formed ;  and  I  shall  be  able  to  do  so  very  .briefly,  be- 
cause, having  had  the  opportunity  of  reading  a  judgment  prepared  by 
my  Brother  PATTESON,  and  entirely  agreeing  with  it,  I  may  content 
myself  with  referring  to  the  statement  he  has  made  in  detail  of  those 
preliminary  points  in  which  we  all,  I  believe,  agree,  and  which  bring 
the  case  up  to  that  point  upon  which  its  decision  must  certainly  turn, 
and  with  regard  to  which  our  difference  exists.  This  point  is  whether 
certain  facts,  which  may  be  taken  as  clear  upon  the  evidence,  amount 
to  an  imprisonment.  These  facts,  stated  shortly  and  as  I  understand 
them,  are,  in  effect,  as  follows: 


142         SPECIFIC  TORTS INFRINGEMENT  OF  PERSONAL  SECURITY 

A  part  of  a  public  highway  was  inclosed,  and  appropriated  for 
spectators  of  a  boat  race,  paying  a  price  for  their  seats.  The  plaintiff 
was  desirous  of  entering  this  part,  and  was  opposed  by  the  defendant ; 
but,  after  a  struggle,  during  which  no  momentary  detention  of  his  per- 
son took  place,  he  succeeded  in  climbing  over  the  inclosure.  Two  po- 
licemen were  then  stationed  by  the  defendant  to  prevent,  and  they  did 
prevent,  him  from  passing  onwards  in  the  direction  in  which  he  de- 
clared his  wish  to  go ;  but  he  was  allowed  to  remain  unmolested  where 
he  was,  and  was  at  liberty  to  go,  and  was  told  that  he  was  so,  in  the 
:  wly  other  direction  by  which  he  could  pass.  This  he  refused  for  some 
vime,  and,  during  that  time,  remained  where  he  had  thus  placed  him- 
self. 

These  are  the  facts,  and,  setting  aside  those  which  do  not  properly 
bear  "on  the  question  now  at  issue,  there  will  remain  these :  That  the 
plaintiff,  being  in  a  public  highway  and  desirous  of  passing  along  it,  in 
a  particular  direction,  is  prevented  from  doing  so  by  the  orders  of  the 
defendant,  and  that  the  defendant's  agents  for  the  purpose  are  police- 
men, from  whom,  indeed,  no  unnecessary  violence  was  to  be  antici- 
pated, or  such  as  they  believed  unlawful,  yet  who  might  be  expected 
to  execute  such  Commands  as  they  deemed  lawful,  with  all  necessary 
force,  however  resisted.  But,  although  thus  obstructed,  the  plaintiff 
was  at  liberty  to  move  his  person,  and  go  in  any  other  direction,  at  his 
free  will  and  pleasure,  and  no  actual  force  or  restraint  on  his  person 
was  used,  unless  the  obstruction  before  mentioned  amounts  to  so 
much.  I  lay  out  of  consideration  the  question  of  right  or  wrong  be- 
tween these  parties.  The  acts  will  amount  to  imprisonment,  neither 
more  nor  less,  from  their  being  wrongful  or  capable  of  justification. 
And  I  am  of  opinion  that  there  was  no  imprisonment.  To  call  it  so 
appears  to  me  to  confound  partial  obstruction  and  disturbance  with 
total  obstruction  and  detention.  A  prison  may  have  its  boundary, 
large  or  narrow,  visible  and  tangible,  or,  though  real,  still  in  the  con- 
ception only;  it  may  itself  be  movable  or  fixed;  but  a  boundary  it 
must  have,  and  that  boundary  the  party  imprisoned  must  be  prevented 
from  passing.  He  must  be  prevented  from  leaving  that  place,  within 
the  ambit  of  which  the  party  imprisoning  would  confine  him,  except 
by  prison-breach.  Some  confusion  seems  to  me  to  arise  from  con- 
founding imprisonment  of  the  body  with  mere  loss  of  freedom.  It  is 
one  part  of  the  definition  of  freedom  to  be  able  to  go  whithersoever 
one  pleases.  But  imprisonment  is  something  more  than  the  mere  loss 
of  this  power.  It  includes  the  notion  of  restraint  within  some  limits 
defined  by  a  will  or  power  exterior  to  our  own. 

In  Com.  Dig.  "Imprisonment,"  (G,)  it  is  said :  "Every  restraint  of 
the  liberty  of  a  freeman  will  be  an  imprisonment."  For  this  the  au- 
thorities cited  are  2  Inst.  482;  Robert  &  Stroud's  Case,  Cro.  Car.  210. 
But,  when  these  are  referred  to,  it  will  be  seen  that  nothing  was  in- 
tended at  all  inconsistent  with  what  I  have  ventured  to  lay  down 
above.  In  both  books,  the  object  was  to  point  out  that  a  prison  was 


FALSE  IMPRISONMENT  143 

not  necessarily  what  is  commonly  so  called, — a  place  locally  defined 
and  appointed  for  the  reception  of  prisoners.  Lord  Coke  is  com- 
menting on  the  statute  of  Westminster  2d  (1  St.  13  Edw.  I.  c.  48),  "in 
prisona,"  and  says :  "Every  restraint  of  the  liberty  of  a  freeman  is  an 
imprisonment,  although  he  be  not  within  the  walls  of  any  common 
prison."  The  passage  in  Cro.  Car.  is  from  a  curious  case  of  an  infor- 
mation against  Sir  Miles  Robert  and  Mr.  Stroud  for  escaping  out  of 
the  Gate-House  Prison,  to  which  they  had  been  committed  by  the 
king.  The  question  was  whether,  under  the  circumstances,  they  had 
ever  been  there  imprisoned.  Owing  to  the  sickness  in  London,  and 
through  the  favor  of  the  keeper,  these  gentlemen  had  not,  except  on 
one  occasion,  ever  been  within  the  walls  of  the  Gate-House.  The  oc- 
casion is  somewhat  singularly  expressed  in  the  decision  of  the  court, 
which  was  "that  their  voluntary  retirement  to  the  close  stool"  in  the 
Gate-House  "made  them  to  be  prisoners."  The  resolution,  however, 
in  question  is  this :  "That  the  prison  of  the  king's  bench  is  not  any  lo- 
cal prison,  confined  only  to  one  place,  and  that  every  place  where  any 
person  is  restrained  of  his  liberty  is  a  prison ;  as  if  one  take  sanctuary, 
and  depart  thence,  he  shall  be  said  to  break  prison." 

On  a  case  of  this  sort,  which,  if  there  be  difficulty  in  it,  is  at  least 
purely  elementary,  it  is  not  easy  nor  necessary  to  enlarge;  and  I  am 
unwilling  to  put  any  extreme  case  hypothetically ;  but  I  wish  to  meet 
one  suggestion,  which  has  been  put  as  avoiding  one  of  the  difficulties 
which  cases  of  this  sort  might  seem  to  suggest.  If  it  be  said  that  to 
hold  the  present  case  to  amount  to  an  imprisonment  would  turn  every 
obstruction  of  the  exercise  of  a  right  of  way  into  an  imprisonment, 
the  answer  is  that  there  must  be  something  like  personal  menace  or 
force  accompanying  the  act  of  obstruction,  and  that,  with  this,  it  will 
amount  to  imprisonment.  I  apprehend  that  is  not  so.  If,  in  the  course 
of  a  night,  both  ends  of  a  street  were  walled  up,  and  there  was  no 
egress  from  the  house  but  into  the  street,  I  should  have  no  difficulty 
in  saying  that  the  inhabitants  were  thereby  imprisoned ;  but  if  only  one 
end  were  walled  up,  and  an  armed  force  stationed  outside  to  prevent 
any  scaling  of  the  wall  or  passage  that  way,  I  should  feel  equally  clear 
that  there  was  no  imprisonment.  If  there  were,  the  street  would  obvi- 
ously be  the  prison ;  and  yet,  as  obviously,  none  would  be  confined  in  it. 

Knowing  that  my  lord  has  entertained  strongly  an  opinion  directly 
contrary  to  this,  I  am  under  serious  apprehension  that  I  overlook  some 
difficulty  in  forming  my  own ;  but,  if  it  exists,  I  have  not  been  able  to 
discover  it,  and  am  therefore  bound  to  state  that,  according  to  my 
view  of  the  case,  the  rule  should  be  absolute  for  a  new  trial.  *  *  * 

Lord  DENMAN,  C.  J.  I  have  not  drawn  up  a  formal  judgment  in 
this  case,  because  I  hoped  to  the  last  that  the  arguments  which  my 
learned  Brothers  would  produce  in  support  of  their  opinion  might 
alter  mine.  We  have  freely  discussed  the  matter,  both  orally  and  in 
written  communication;  but,  after  hearing  what  they  have  advanced, 
I  am  compelled  to  say  that  my  first  impression  remains.  If,  as  I  must 


144          SPECIFIC  TORTS INFRINGEMENT  OF  PERSONAL  SECURITY 

believe,  it  is  a  wrong  one,  it  may  be  in  some  measure  accounted  for  by 
the  circumstances  attending  the  case.  A  company  unlawfully  ob- 
structed a  public  way  for  their  own  profit,  extorting  money  from  pas- 
sengers, and  hiring  policemen  to  effect  this  purpose.  The  plaintiff, 
wishing  to  exercise  his  right  of  way,  is  stopped  by  force,  and  ordered 
to  move  in  a  direction  which  he  wished  not  to  take.  He  is  told  at  the 
same  time  that  a  force  is  at  hand  ready  to  compel  his  submission. 
That  proceeding  appears  to  me  equivalent  to  being  pulled  by  the  col- 
lar out  of  one  line  into  another.  There  is  some  difficulty  perhaps,  in  de- 
fining "imprisonment"  in  the  abstract,  without  reference  to  its  illegali- 
ty ;  nor  is  it  necessary  for  me  to  do  so,  because  I  consider  these  acts  as 
amounting  to  imprisonment.  That  word  I  understand  to  mean  any 
restraint  of  the  person  by  force.  In  Buller's  Nisi  Prius  (page  22) 
it  is  said:  "Every  restraint  of  a  man's  liberty  under  the  custody  of 
another,  either  in  a  jail,  house,  stocks,  or  in  the  street,  is  in  law  an  im- 
prisonment; and  whenever  it  is  done  without  a  proper  authority,  is 
false  imprisonment,  for  which  the  law  gives  an  action;  and  this  is 
commonly  joined  to  assault  and  battery;  for  every  imprisonment  in- 
cludes a  battery  and  every  battery  an  assault."  It  appears,  therefore, 
that  the  technical  language  has  received  a  very  large  construction,  and 
that  there  need  not  be  any  touching  of  the  person.  A  locking  up 
would  constitute  an  imprisonment  without  touching.  From  the  lan- 
guage of  Thorpe,  C.  J.,  which  Mr.  Selwyn  (volume  II,  p.  915  [llth 
Ed.]  tit.  Imprisonment)  cites  from  the  Book  of  Assizes  (22  Ass.  fol. 
104,  B,  pi.  85),  it  appears  that,  even  in  very  early  times,  restraint  of 
liberty  by  force  was  understood  to  be  the  reasonable  definition  of  im- 
prisonment. I  had  no  idea  that  any  person  in  these  times  supposed 
any  particular  boundary  to  be  necessary  to  constitute  imprisonment,  or 
that  the  restraint  of  a  man's  person  from  doing  what  he  desires  ceases 
to  be  an  imprisonment  because  he  may  find  some  means  of  escape.  It 
is  said  that  the  party  here  was  at  liberty  to  go  in  another  direction. 
I  am  not  sure  that  in  fact  he  was,  because  the  same  unlawful  power 
which  prevented  him  from  taking  one  course  might,  in  case  of  acquies- 
cence, have  refused  him  any  other.  But  this  liberty  to  do  something 
else  does  not  appear  to  me  to  affect  the  question  of  imprisonment.  As 
long  as  I  am  prevented  from  doing  what  I  have  a  right  to  do,  of  what 
importance  is  it  that  I  am  permitted  to  do  something  else?  How  does 
the  imposition  of  an  unlawful  condition  show  that  I  am  not  restrained  ? 
If  I  am  locked  in  a  room,  am  I  not  imprisoned  because  I  might  effect 
my  escape  through  a  window,  or  because  I  might  find  an  exit  danger- 
ous or  inconvenient  to  myself,  as  by  wading  through  water,  or  by  tak- 
ing a  route  so  circuitous  that  my  necessary  affairs  would  suffer  by  de- 
lay? It  appears  to  me  that  this  is  a  total  deprivation  of  liberty  with 
reference  to  the  purpose  for  which  he  lawfully  wished  to  employ  his 
liberty;  and,  being  effected  by  force,  it  is  not  the  mere  obstruction  of 
a  way,  but  a  restraint  of  the  person.  The  case  cited  as  occurring  be- 
fore. Lord  Chief  Justice  Tindal,  as  I  understand  it,  is  much  in  point. 


FALSE   IMPRISONMENT  145 

He  held  it  an  imprisonment  where  the  defendant  stopped  the  plaintiff 
on  his  road  till  he  had  read  a  libel  to  him,  yet  he  did  not  prevent  his 
escaping  in  another  direction.  It  said  that,  if  any  damage  arises  from 
such  obstruction,  a  special  action  on  the  case  may  be  brought.  Must 
I  then  sue  out  a  new  writ,  stating  that  the  defendant  employed  direct 
force  to  prevent  my  going  where  my  business  called  me,  whereby  I 
sustained  loss?  And,  if  I  do,  is  it  certain  that  I  shall  not  be  told  that 
I  have  misconceived  my  remedy,  for  all  flows  from  the  false  imprison- 
ment, and  that  should  have  been  the  subject  of  an  action  of  trespass 
and  assault?  For  the  jury  properly  found  that  the  whole  of  the  de- 
fendant's conduct  was  continuous ;  it  commenced  in  illegality ;  and  the 
plaintiff  did  right  to  resist  it  as  an  outrageous  violation  of  the  liberty 
of  the  subject  from  the  very  first. 
Rule  absolute.11 


1.  ARREST  WITHOUT  WARRANT 
(A )  For  Misdemeanor l* 


YATES  v.  STATE. 
(Supreme  Court  of  Georgia,  1907.    127  Ga.  813,  56  S.  E.  1017,  9  Ann.  Cas.  620.) 

COBB,  P.  J.18  Yates  was  tried  under  an  indictment  charging  him 
with  the  murder  of  Freeman,  and  was  convicted  of  voluntary  man- 
slaughter. It  appeared  from  the  evidence  that  Freeman  was  the  town 
marshal  of  Donalsonville,  and  the  homicide  occurred  while  he,  with 
two  other  persons  whom  he  had  asked  to  accompany  him,  was  attempt- 
ing, without  a  warrant,  to  arrest  the  accused  for  a  violation  of  a  town 
ordinance  committed  in  his  presence  some  months  before.  The  ac- 
cused made  a  motion  for  a  new  trial  which  was  refused,  and  he  ex- 
cepted.  *  *  * 

Error  was  assigned  because  the  court  instructed  the  jury  that  if  they 
believed  from  the  evidence  that,  on  a  prior  occasion  the  accused  had, 
in  the  presence  of  the  deceased,  who  was  the  town  marshal  of  Donal- 
sonville, violated  an  ordinance  of  that  town  "then  the  officer  would  have 
a  right  under  the  law  to  arrest  him  without  a  warrant,  and  if  he  was 
attempting  to  arrest  him  for  a  violation  of  a  town  ordinance  which  had 
been  committed  in  his  presence,  that  would  be  a  legal  arrest,  and  the  de- 
fendant would  have  no  right  to  resist  the  officer  in  making  the  arrest ; 

11  Williams  and  Patteson,  JJM  concurred  with  Coleridge,  J.    Their  opinions 
are  omitted. 

12  For  discussion  of  principles,  see  Chapin  on  Torts,  §  65. 
i»  A  portion  of  the  opinion  is  omitted. 

CHAP. CAS. TOBTS — 10 


146          SPECIFIC  TORTS — INFRINGEMENT  OF  PERSONAL  SECURITY 

and  if  he  did  so,  and  in  doing  so  took  the  life  of  the  deceased,  in  order 
to  prevent  a  legal  arrest,  then  it  would  not  be  manslaughter,  it  would 
be  murder."  The  distinction  which  has  come  down  to  us  from  the 
common  law  between  arrests,  without  a  warrant,  for  felonies  and  such 
arrests  for  minor  offenses  has  been  fully  discussed  and  clearly  pointed 
out  by  Mr.  Justice  Evans  in  Porter  v.  State,  124  Ga.  297,  52  S.  E.  283, 
2  L.  R.  A.  (N.  S.)  730,  and  need  not  be  further  discussed  here. 

We  are  here  dealing  with  the  question  of  the  authority  of  a  mu- 
nicipal peace  officer  to  arrest,  without  a  warrant,  for  a  mere  municipal 
offense  which  though  committed  in  his  presence  was  perpetrated 
months  before  the  attempt  to  arrest  was  made.  It  was  held  by  the 
majority  of  the  court  in  the  case  cited  that  section  896  of  our  Penal 
Code  is  applicable  to  municipal  peace  officers,  such  as  policemen  or 
town  marshals.  That  section  reads  as  follows :  "An  arrest  may  be 
made  for  a  crime  by  an  officer  either  under  a  warrant  or  without  a 
warrant,  if  the  offense  is  committed  in  his  presence  or  the  offender  is 
endeavoring  to  escape  or  for  other  cause  there  is  likely  to  be  a  failure 
of  justice  for  want  of  an  officer  to  issue  a  warrant."  As  stated  by  Mr. 
Justice  Evans,  in  the  majority  opinion  in  the  Porter  Case:  "Section 
896  of  our  Penal  Code  is  a  codification  of  the  common  law  on  the 
subject  of  arrest,  with  perhaps  a  slight  enlargement  of  the  power  of 
arrest."  "Though  at  common  law  an  officer  might  without  a  warrant 
arrest  for  a  breach  of  the  peace  committed  in  his  view,  the  arrest  must 
have  been  made  at  the  time  of  or  within  a  reasonable  time  after  the 
commission  of  the  offense — that  is,  the  officer  must  immediately  set 
about  the  arrest  and  follow  up  the  effort,  until  the  arrest  is  made. 
There  must  be  a  continued  pursuit  and  no  cessation  of  acts  tending 
toward  the  arrest  from  the  time  of  the  commission  of  the  offense 
until  the  apprehension  of  the  offender.  Any  delay  for  purposes  for- 
eign to  the  arrest  will  make  the  officer  a  trespasser."  Voorhees  on 
Arrest,  §  141 ;  Hawley,  Law  of  Arrest,  39 ;  Regina  v.  Walker,  25 
Eng.  Law  &  Eq.  R.  589;  Clifford  v.  Brandon,  2  Campb.  358;  Cook 
v.  Nethercote,  6  C.  &  P.  '741 ;  Coupey  v.  Henley,  2  Esp.  540;  Taylor  v. 
Strong,  3  Wend.  (N.  Y.)  385 ;  Wahl  v.  Walton,  30  Minn.  506,  16  N. 
W.  397.  A  statute  of  Minnesota  provided  that  a  peace  officer  might 
without  a  warrant  arrest  a  person  under  prescribed  conditions  set  forth 
in  subdivisions  of  the  statute,  the  first  of  which  provided  that  the 
officer  might  so  arrest  "for  a  public  offense  committed  or  attempted  in 
his  presence."  In  Wahl  v.  Walton,  supra,  Gilfillan,  C.  J.,  after  stating 
that,  "At  the  common  law,  a  constable  might,  without  a  warrant,  ar- 
rest for  a  breach  of  the  peace  committed  in  his  view"  (for  which  he 
cited  4  Bl.  Com.  292),  and  that  "it  was  well  settled  that  in  case  of 
an  offense  not  a  felony  the  arrest  must  have  been  made  at  the  time 
of  or  within  a  reasonable  time  after  its  commission,"  and  citing  Eng- 
lish authorities,  said :  "The  statute  seems  to  be  a  re-enactment  of  the 
common-law  rule,  with  this  change,  that  the  first  subdivision  enlarges 


FALSE   IMPRISONMENT  147 

the  class  of  cases  in  which  a  peace  officer  may  arrest  where  the  of- 
fense is  committed  in  his  presence,  so  that  such  arrest  may  be  made 
for  any  public  offense — felony  or  misdemeanor — though  not  amounting 
to  a  breach  of  the  peace.  But  there  is  no  reason  to  suppose  that  it  was 
intended  to  change  in  any  other  respect  the  conditions  upon  which  the 
arrest  may  be  made."  He  further  says:  "When  it  is  said  that  the 
arrest  must  be  made  at  the  time  or  immediately  after  the  offense,  ref- 
erence is  had,  not  merely  to  time,  but  rather  to  sequence  of  events.  The 
officer  may  not  be  able  at  the  exact  time,  to  make  the  arrest ;  he  may 
be  opposed  by  friends  of  the  offender;  may  find  it  necessary  to  pro- 
cure assistance;  considerable  time  may  be  employed  in  the  pursuit. 
The  officer  must  at  once  set  about  the  arrest,  and  follow  up  the  effort 
until  the  arrest  is  effected.  *  *  *  In  this  case,  some  five  hours 
having  elapsed  between  what  occurred  at  noon  and  the  arrest,  during 
which  the  defendant  (arresting  officer)  was  not  about  anything  connect- 
ed with  the  arrest,  the  court  was  right  in  its  instruction  that  there  was 
no  authority  to  arrest  for  that  occurrence."  In  Meyer  v.  Clark,  41  N. 
Y.  Super.  Ct.  107,  it  was  held,  "When  a  policeman,  after  having  seen  a 
breach  of  the  peace  or  a  misdemeanor  committed,  departs,  and  after- 
wards feturns,  he  cannot  arrest  without  a  warrant  for  such  previous 
offense  so  committed  in  his  view,"  and  that  the  shortness  of  the  inter- 
val does  not  affect  the  question.  In  Regina  v.  Walker,  supra,  some  two 
hours  had  elapsed  after  the  commission  of  the  offense  before  the  ar- 
rest was  made,  and  it  was  held  that  the  authority  to  arrest  was  lost, 
because  there  was  no  continued  pursuit.  In  the  case  with  which  we  are 
dealing,  about  four  months  had  elapsed  from  the  time  the  offense  was 
committed  in  the  presence  of  the  town  marshal  until  he,  without  a  war- 
rant, made  this  attempt  to  arrest  the  offender.  So  there  can  be  no 
doubt  that  he  was  illegally  attempting  to  arrest  the  accused.  *  *  * 
Judgment  reversed.  All  the  Justices  concur,  except  FISH,  C.  J.,  ab- 
sent 


(B)  For  Felony  14 


BECKWITH  v.  PHILBY  et  al. 
(Court  of  King's  Bench,  1827.    6  Barn.  &  C.  635,  108  Reprint,  585,  30  R.  R.  484.) 

This  was  an  action  for  assaulting,  beating,  handcuffing,  and  imprison- 
ing the  plaintiff,  and  keeping  and  detaining  him  handcuffed  and  im- 
prisoned, without  any  reasonable  or  probable  cause  for  forty-eight 
hours,  on  a  false  and  pretended  charge  of  felony.  At  the  trial  the  fol- 
lowing appeared  to  be  the  facts  of  the  case : 

i*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  65. 


148         SPECIFIC  TORTS — INFRINGEMENT  OF  PERSONAL  SECURITY 

The  plaintiff  was  a  blacksmith  residing  at  Waltham  Cross,  in  the 
county  of  Hertford.  The  defendant  Philby  was  high  constable  of 
Ongar  in  Essex,  and  resided  at  Loughton,  in  that  county.  The  defend- 
ants Wilks  and  Spicer  were  constables  of  that  parish.  The  plain- 
tiff, on  the  31st  of  January,  1826,  with  a  bridle  and  saddle  on  his  back, 
was  returning  from  Romford  market,  where  he  had  sold  a  pony  for 
£7.  10  s.,  and  about  half  past  six  in  the  evening  sat  down  to  rest  himself 
near  Loughton  Bridge.  While  he  was  sitting  there,  one  Gould,  a  farm- 
er resident  in  the  neighborhood,  passed  him.  Gould  told  Philby  the 
circumstance,  and  said  he  thought  he  ought  to  look  after  the  man. 
Philby  went  out  and  asked  the  plaintiff  several  questions,  to  which  he 
gave  such  answers  as  induced  Philby  to  think  he  had  been  stealing  a 
horse,  or  was  about  to  do  so.  The  plaintiff  was  searched,  and  was 
again  asked  by  Philby  where  he  came  from ;  the  plaintiff  then  said  that 
he  had  come  from  Cheshunt,  and  had  been  to  Romford  to  sell  a  horse, 
that  his  name  was  Beckwith,  and  he  had  got  the  horse  of  one  Bart- 
lett.  He  then  referred  Philby  to  one  Noble,  who  lived  in  the  neighbor- 
hood. No  inquiry  was  made  by  Philby  of  Noble  that  night.  Philby 
then  sent  for  the  defendant  Wilks,  to  take  the  plaintiff  to  the  watch- 
house,  and  on  Wilks'  arrival  desired  him  to  handcuff  the  plaintiff,  which 
was  done.  Wilks  took  him,  at  his  own  request,  to  a  public-house  at 
Loughton,  and  he  remained  there  handcuffed  during  the  night.  On 
the  following  morning  Wilks  delivered  the  plaintiff  to  the  custody  of 
Spicer,  who  took  him  to  a  magistrate,  who  examined  him,  and  said 
he  thought  it  his  duty  to  detain  him,  but  that  if  there  was  anybody 
near  who  would  be  bound  for  his  appearance,  he  might  go  home  to 
his  family.  Noble  became  bound  for  the  plaintiff's  appearance,  and 
he  was  then  discharged.  Philby  was  present  at  this  examination.  On 
inquiry  at  Cheshunt  it  appeared  that  the  plaintiff  had  bought  a  horse  of 
Bartlett,  as  he  had  stated,  and  nothing  subsequently  appeared  against 
his  character.  No  horse  had  been  stolen  in  or  near  Loughton  on  the 
day,  or  for  some  days  before  the  plaintiff  was  apprehended,  but  within 
the  preceding  month  many  had  been  stolen. 

For  the  plaintiff  it  was  contended  that  there  was  no  charge  of  felony 
made,  nor  any  felony  committed,  the  defendant  Philby  was  not  jus- 
tified in  making  the  arrest  in  the  first  instance,  and  still  less  were  he 
and  the  other  defendants  justified  in  detaining  the  plaintiff  during  the 
night.  The  learned  judge  was  of  opinion  that  the  arrest  and  detention 
were  lawful,  provided  the  defendants  had  reasonable  cause  to  suspect 
that  the  plaintiff  had  committed  the  felony,  and  he  directed  the  jury  to 
find  a  verdict  for  the  defendants,  if  they  thought  upon  the  whole  evi- 
dence that  the  defendants  had  reasonable  cause  for  suspecting  the  plain- 
tiff of  felony.  A  verdict  was  found  for  the  defendants,  but  liberty  was 
reserved  to  the  plaintiff  to  move  to  enter  a  verdict  for  nominal  damages, 
if  the  Court  should  be  of  opinion  that  the  arrest  and  detention  were 
unlawful. 


FALSE   IMPRISONMENT  149 

Gurney  now  moved  to  enter  a  verdict  for  the  plaintiff  for  nominal 
damages,  on  the  ground  that  a  constable  had  no  authority  without  a 
warrant  to  apprehend  a  person  unless  there  was  a  charge  of  felony 
made  by  a  third  person,  or  unless  a  felony  had  been  committed.  A 
constable,  acting  on  his  own  suspicion,  places  himself  in  the  situation 
of  a  private  person.  The  latter  cannot  lawfully  arrest  another  unless 
a  felony  has  actually  been  committed  and  then  it  must  be  on  his  own 
suspicion  and  not  on  report  or  suspicion  of  another.  When  a  fel- 
ony has  been  committed  by  some  one,  a  constable  may,  upon  the  in- 
formation of  others,  lawfully  apprehend  a  supposed  offender  without 
any  knowledge  of  the  circumstances  on  which  a  suspicion  is  founded. 
But  if  he  act  without  having  information  from  others  and  on  his  own 
suspicion,  then  he  in  the  same  manner  as  a  private  individual  must  be 
liable  to  an  action  if  it  afterwards  appear  that  no  felony  has  been  com- 
mitted. 

Lord  TENTERDON,  C.  J.1B  I  am  of  opinion  that  there  is  no  ground 
for  disturbing  the  verdict.  Whether  there  was  any  reasonable  cause 
for  suspecting  that  the  plaintiff  had  committed  a  felony,  or  was  about  to 
commit  one,  or  whether  he  had  been  detained  in  custody  an  unreason- 
able time,  were  questions  of  fact  for  the  jury,  which  they  have  decided 
against  the  plaintiff,  and  in  my  judgment  most  correctly.  The  only 
question  of  law  in  the  case  is  whether  a  constable  having  reasonable 
cause  to  suspect  that  a  person  has  committed  a  felony  may  detain  such 
person  until  he  can  be  brought  before  a  justice  of  the  peace  to  have  his 
conduct  investigated.  There  is  this  distinction  between  a  private  indi- 
vidual and  a  constable;  in  order  to  justify  the  former  in  causing  the 
imprisonment  of  a  person,  he  must  not  only  make  out  a  reasonable 
ground  of  suspicion  but  he  must  prove  that  a  felony  has  actually  been 
committed;  whereas  a  constable  having  reasonable  ground  to  sus- 
pect that  a  felony  had  been  committed,  is  authorized  to  detain  the  party 
suspected  until  inquiry  can  be  made  by  the  proper  authorities.  Now 
in  this  case  it  is  quite  clear  upon  the  evidence,  and  the  jury  have  so 
found  that  the  conduct  of  the  plaintiff  had  given  the  defendants  just 
cause  for  suspecting  that  he  either  had  committed  or  was  about  to  com- 
mit a  felony,  and  the  jury  having  so  found,  I  am  of  opinion  that  the 
action  was  not  maintainable. 

Rule  refused. 


MORLEY  v.  CHASE. 

(Supreme  Judicial  Court  of  Massachusetts,  1887.     143  Mass.  396,  9  N.  E.  767.) 
Tort  for  an  assault  and  false  imprisonment.    Trial  in  the  Superior 
Court,  before  Thompson,  J.,  who  allowed  a  bill  of  exceptions,  in  sub- 
stance as  follows : 

15  The  statement  of  facts  is  abridged. 


150          SPECIFIC  TORTS INFRINGEMENT  OF   PERSONAL   SECURITY 

It  appeared  that  on  May  27,  1884,  at  about  half  past  one  o'clock  p. 
m.,  a  constable  duly  attached,  on  civil  process,  certain  personal  property 
of  the  defendant  in  the  defendant's  bakeshop  and  duly  deputed  the 
plaintiff  as  keeper  thereof  in  said  shop. 

The  defendant's  daughter,  sixteen  years  of  age,  was  attending  said 
shop  at  the  time,  and  in  half  an  hour  another  older  girl  employed  in 
said  shop  came  in  and  remained  there. 

The  evidence  was  conflicting  as  to  whether  the  girls  or  either  of  them 
were  informed  or  knew  that  an  attachment  had  been  made,  or  as  to  the 
authority,  object  or  purpose  of  the  constable  or  keeper,  the  girls  deny- 
ing having  had  any  such  information  or  knowledge,  and  the  consta- 
ble and  the  plaintiff  testifying  that  they  duly  and  fully  informed  said 
girls  of  the  attachment  and  showed  to  them  the  paper  deputing  him  as 
keeper. 

It  further  appeared  that  at  about  half  past  four  o'clock  p.  m.  the  de- 
fendant came  into  his  shop  and  found  there  the  plaintiff  and  said 
girls. 

The  defendant  offered  evidence  tending  to  prove  that  he  then  had 
no  knowledge  or  information  as  to  the  attachment  or  the  authority  of 
the  plaintiff ;  that  immediately  upon  his  coming  into  his  shop  his  daugh- 
ter said  to  him,  "This  man  has  taken  money  from  the  drawer  and  has 
pushed  me ;"  that  thereupon  the  defendant  told  the  plaintiff  to  restore 
the  money ;  that  the  plaintiff  made  no  reply ;  that  then  the  defendant 
seized  the  plaintiff,  pushed  him  against  the  partition  and  held  him 
there  some  minutes  until  a  policeman  came  in  and  took  the  plaintiff 
away  from  the  shop;  that  the  plaintiff  made  no  statement  and  gave 
no  information  as  to  the  attachment,  or  his  authority ;  and  that  the  de- 
fendant neither  knew  nor  suspected  either. 

The  plaintiff  offered  evidence  tending  to  prove  that  immediately 
upon  the  defendant  entering  the  shop,  the  plaintiff  fully  informed  him 
of  the  attachment,  and  of  his  authority  as  keeper,  and  that  the  defend- 
ant fully  understood  vboth,  before  making  the  assault  complained  of. 
He  also  described  the  assault  as  very  violent  and  unreasonable. 

The  judge  instructed  the  jury  that,  the  plaintiff  being  rightfully  in 
said  shop  and  his  doings  there  being  legal,  the  defendant,  not  being 
an  officer,  had  no  right  to  arrest  or  lay  violent  hands  on  him,  though 
the  defendant  had  reasonable  cause  to  believe  that  the  plaintiff  had 
committed  a  felony,  unless  by  some  fault  or  improper  omission  on  the 
plaintiff's  part  the  plaintiff  contributed  to  induce  such  belief ;  that  the 
defendant,  if  he  was  led  to  believe  that  the  plaintiff  had  wrongfully 
taken  money  from  his  drawer  by  the  conduct  of  the  plaintiff  and  his 
failure  to  notify  the  defendant  of  his  business  in  his  shop,  would  be 
justified  in  forcibly  restraining  the  plaintiff  and  endeavoring  to  obtain 
the  money  which  he  believed  had  been  wrongfully  taken  from  the 
drawer,  although  in  fact  no  money  had  been  wrongfully  taken  there- 
from ;  and  that  in  determining  whether  or  not  the  defendant  believed 


FALSE   IMPRISONMENT  151 

that  the  plaintiff  had  wrongfully  taken  money  from  the  drawer  the 
jury  were  to  take  into  consideration  all  the  circumstances  bearing  upon 
the  conduct  of  both  the  plaintiff  and  the  defendant  upon  that  occa- 
sion. 

At  the  close  of  the  charge,  the  defendant  requested  the  judge  further 
to  instruct  the  jury  that  if  the  girl  notified  her  father  as  above  stated, 
in  the  hearing  of  the  plaintiff  and  the  plaintiff  with  the  opportunity  so 
to  do,  neglected  to  explain  to  the  defendant,  such  neglect  may  have  jus- 
tified the  defendant  in  arresting  him.  The  judge  refused  so  to  rule. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant  al- 
leged exceptions. 

FIELD,  J.  In  Rohan  v.  Sawin,  5  Cush.  281,  285,  it  is  said  in  refer- 
ence to  felonies :  "As  to  the  right  appertaining  to  private  individuals 
to  arrest  without  a  warrant,  it  is  a  much  more  restricted  authority,  and 
is  confined  to  cases  of  the  actual  guilt  of  the  party  arrested;  and  the 
arrest  can  only  be  justified  by  proving  such  guilt."  See,  also,  Com- 
monwealth v.  Carey,  12  Cush.  246,  251. 

The  rule  by  some  other  courts  has  been  stated  to  be  that  a  private 
person  can  only  justify  for  an  arrest  without  a  warrant,  on  suspicion 
of  felony,  by  proving  that  a  felony  has  actually  been  committed,  and 
that  he  has  probable  cause  for  believing  that  the  person  arrested  was 
the  person  who  committed  it.  Allen  v.  Wright,  8  C.  &  P.  522 ;  Reuck 
v.  McGregor,  32  N.  J.  Law,  70;  Brockway  v.  Crawford,  48  N.  C.  433, 
67  Am.  Dec.  250;  Holley  v.  Mix,  3  Wend.  (N.  Y.)  350,  20  Am.  Dec. 
702;  Teagarden  v.  Graham,  31  Ind.  422. 

Under  either  view  of  the  law,  the  instructions  given  were  sufficiently 
favorable  to  the  defendant.  If  no  felony  had  been  committed,  it  is 
difficult  to  see  what  defense  the  defendant  had.  The  request  was  for 
a  ruling  upon  the  effect  of  specific  testimony  when  there  was  other 
evidence  relevant  to  the  same  point  and  the  instructions  given  covered 
the  whole  subject;  and  the  request  omits  the  important  qualification 
that  the  defendant  must  have  believed  from  what  his  daughter  told 
him  that  the  plaintiff  had  wrongfully  taken  money  from  the  drawer. 
It  was  rightly  refused. 

Exceptions  overruled. 


152  INJURIES  TO   REPUTATION DEFAMATION 

INJURIES    TO    REPUTATION— DEFAMATION 
I.  Publication1 


SHEFFILL  v.  VAN  DEUSEN. 

(Supreme  Judicial  Court  of  Massachusetts,  1859.    13  Gray,  304, 
74  Am.  Dec.  632.) 

Action  of  tort  for  slander.  Trial  in  the  court  of  common  pleas,  be- 
fore Briggs,  J.,  who  signed  this  bill  of  exceptions :  "The  words  claimed 
to  have  been  slanderous,  were  spoken,  if  at  all,  at  the  dwelling  house  of 
the  defendants  and  at  that  part  called  the  bakery,  where  bread  and 
other  articles  were  sold  to  customers ;  and  were  spoken  by  Mrs.  Van 
Deusen  to  Mrs.  Shemll.  The  defendants  asked  the  court  to  instruct 
the  jury  that  if  the  words  alleged  in  the  plaintiffs'  declaration  were 
spoken  to  Mrs.  Sheffill,  and  no  other  person  but  Mrs.  Shemll  and  Mrs. 
Van  Deusen  were  present,  there  was  no  such  publication  of  the  words 
as  would  maintain  the  action.  The  court  declined  so  to  instruct,  but 
did  instruct  the  jury  that,  if  the  words  were  publicly  uttered  in  the 
bakery  of  the  defendants,  there  was  a  sufficient  publication,  though  the 
plaintiff  has  not  shewn  that  any  other  person  was  present,  at  the  time 
they  were  spoken,  but  Mrs.  Sheffill  and  Mrs.  Van  Deusen.  The  jury 
returned  a  verdict  for  the  plaintiffs,  and  the  defendants  except." 

BIGEXOW,  J.2  Proof  of  the  publication  of  the  defamatory  words 
alleged  in  the  declaration  was  essential  to  the  maintenance  of  this  ac- 
tion. Slander  consists  in  uttering  words  to  the  injury  of  a  person's 
reputation.  No  such  injury  is  done  when  the  words  are  uttered  only 
to  the  person  concerning  whom  they  are  spoken,  no  one  else  being 
present  or  within  hearing.  It  is  damage  done  to  character  in  the  opinion 
of  other  men,  and  not  in  a  party's  self  estimation,  which  constitutes 
the  material  element  in  an  action  for  verbal  slander.  Even  in  a  civil  ac- 
tion for  libel,  evidence  that  the  defendant  wrote  and  sent  a  sealed  let- 
ter to  the  plaintiff,  containing  defamatory  matter,  was  held  insufficient 
proof  of  publication,  although  it  would  be  otherwise  in  an  indictment 
for  libel,  because  such  writings  tend  directly  to  a  breach  of  the 
peace.  *  *  * 

It  is  quite  immaterial  in  the  present  case  that  the  words  were  spoken 
in  a  public  place.  The  real  question  for  the  jury  was,  were  they  so 
spoken  as  to  have  been  heard  by  a  third  person  ?  The  defendants  were 
therefore  entitled  to  the  instructions  for  which  they  asked. 

Exceptions  sustained. 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  68-74. 

2  A  portion  of  the  opinion  is  omitted. 


PUBLICATION  153 


OWEN  v.  OGILVIE  PUB.  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1898. 
32  App.  Div.  465,  53  N.  Y.  Supp.  1033.) 

HATCH,  J.  Action  to  recover  damages  for  an  alleged  libel  claimed 
to  have  been  published  by  the  defendant,  a  corporation.  The  act  com- 
plained of  was  committed  by  the  defendant's  general  manager.  The  li- 
bel consisted  in  the  dictation  of  a  letter  by  the  defendant's  general 
manager  to  a  young  lady  employed  by  the  corporation  as  a  stenogra- 
pher and  typewriter  in  the  private  office  of  the  general  manager.  The 
letter  was  written  in  reference  to  the  business  of  the  corporation  and 
had  relation  to  a  small  sum  of  money  missing  from  the  cash  drawer, 
and  the  letter  expressed  a  suspicion  that  the  money  had  been  taken  by 
the  plaintiff,  during  her  employment  by  the  defendant,  on  the  day  be- 
fore. 

The  law  is  elementary  that  there  can  be  no  libel  without  a  publica- 
tion of  the  libelous  matter.  We  may  assume  that  this  letter  was  libel- 
ous.  Was  there  a  publication  of  it  by  the  corporation,  within  the 
meaning  of  the  law  ?  Ordinarily,  when  a  letter  is  written  and  delivered 
to  a  third  person,  with  the  intent  and  expectation  that  it  shall  be  read 
by  such  person,  and  it  is  actually  read,  the  publication  is  complete. 
Youmans  v.  Smith,  153  N.  Y.  214,  47  N.  E.  265.  Has  such  rule  ap- 
plication to  the  facts  of  this  case?  The  letter  was  dictated  to  the  ste- 
negrapher,  and  was  by  her  copied  out,  was  signed  by  the  manager,  was 
then  inclosed  in  an  envelope,  and  sent  by  mail  to  the  address  of  the 
plaintiff.  It  may  be  that  the  dictation  to  the  stenographer  and  her  read- 
ing of  the  letter  would  constitute  a  publication  of  the  same  by  the  per- 
son dictating  it,  if  the  relation  existing  between  the  manager  and  the 
copyist  was  that  of  master  and  servant,  and  the  letter  be  held  not  to 
be  privileged.  Such,  however,  was  not  the  relation  of  these  persons. 
They  were  both  employed  by  a  common  master,  and  were  engaged 
in  the  performance  of  duties  which  their  respective  employments  re- 
quired. Under  such  circumstances  we  do  not  think  that  the  stenogra- 
pher is  to  be  regarded  as  a  third  person  in  the  sense  that  either  the 
dictation  or  the  subsequent  reading  can  be  regarded  as  a  publication 
by  the  corporation.  It  was  a  part  of  the  manager's  duty  to  write  let- 
ters for  the  corporation,  and  it  was  the  duty  of  the  stenographer  to 
take  such  letter  in  shorthand,  copy  it  out,  and  read  it  for  the  purpose 
of  correction.  The  manager  could  not  write  and  publish  a  libel  alone, 
and  we  think  he  could  not  charge  the  corporation  with  the  conse- 
quences of  this  act,  where  the  corporation,  in  the  ordinary  conduct  of 
its  business,  required  the  action  of  the  manager  and  the  stenographer 
in  the  usual  course  of  conducting  its  correspondence.  The  act  of  both 
was  joint,  for  the  corporation  cannot  be  said  to  have  completed  the 
act  which  it  required  by  the  single  act  of  the  manager,  as  the  act  of 
both  servants  was  necessary  to  make  the  thing  complete.  The  writ- 


154  INJURIES  TO   REPUTATION — DEFAMATION 

ing  and  the  copying  were  but  parts  of  one  act;  i.  e.  the  production  of 
the  letter.  Under  such  conditions  we  think  the  dictation,  copying,  and 
mailing  are  to  be  treated  as  only  one  act  of  the  corporation ;  and,  as 
the  two  servants  were  required  to  participate  in  it,  there  was  no  pub- 
lication of  the  letter,  in  the  sense  in  which  that  term  is  understood,  by 
delivery  to  and  reading  by  a  third  person.  There  was  in  fact  but  one 
act  by  the  corporation,  and  those  engaged  in  the  performance  of  it  are 
not  to  be  regarded  as  third  parties,  but  as  common  servants  engaged  in 
the  act.  We  do  not  deny  but  that  there  can  be  publication  of  a  libel 
by  a  corporation  by  reading  the  libelous  matter  to  a  servant  of  such 
corporation,  or  delivering  it  to  be  read.  Where  the  duties  devolved 
upon  such  servant  are  distinct  and  independent  of  the  process  by 
which  the  libel  was  produced,  he  might  well  stand  in  the  attitude  of  a 
third  person  through  which  a  libel  can  be  published.  But  such  rule  may 
not  be  applied  where  the  acts  of  the  servants  are  so  intimately  related 
to  each  other  as  is  disclosed  in  the  present  record  and  the  production 
is  the  joint  act  of  both.  As  there  was  no  other  proof  of  publication 
aside  from  the  reading  by  the  stenographer,  it  is  insufficient  to  uphold 
a  finding  that  the  libel  was  published.  Nothing  in  Kiene  v.  Ruff,  1 
Iowa,  482,  conflicts  with  this  view.  That  case  presented  the  ordinary 
question  of  delivery,  by  the  person  writing  the  libel,  of  the  libelous 
matter  to  a  third  person  to  transcribe  the  same.  The  delivery  for 
that  purpose  was  held  sufficient  to  constitute  a  publication  where  such 
person  actually  transcribed  the  matter  and  forwarded  the  letter.  Sub- 
stantially similar  doctrine  i§  contained  in  Snyder  v.  Andrews,  6  Barb. 
43.  Such  rule  is  not  questioned,  but  the  particular  facts  of  this  case 
remove  it  from  its  operation. 

It  follows  that  the  judgment  should  be  reversed  and  a  new  trial 
granted,  costs  to  abide  the  event.  All  concurred,  except  WOODWARD, 
J.,  who  was  absent.  Judgment  and  order  reversed  and  a  new  trial 
granted,  costs  to  abide  the  event. 


II.  Construction  of  Language  * 


HANKINSON  v.  BILBY. 
(Court  of  Exchequer,  1847.     16  Mees.  &  W.  442,  73  R.  B.  563.) 

Case.4  The  declaration  stated  with  proper  innuendoes  that  the 
defendant  falsely  and  maliciously  spoke  and  published  of  the  plaintiff 
the  following  defamatory  words :  ''You  are  a  thief,  and  a  bloody  thief. 

3  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  68-74. 

*  The  statement  of  the  case  and  argument  of  the  counsel  are  abridged. 


CONSTRUCTION   OF  LANGUAGE  155 

You  get  your  living  by  it.  You  have  robbed  Mr.  Lake  of  ;£30,  and 
would  have  robbed  him  of  more,  only  you  were  afraid.  I  did  mean 
what  I  said ;  be  off,  I  don't  want  any  bloody  thieves  here.  You  know 
you  robbed  Mr.  Lake  of  £30." 

At  the  trial,  under  a  plea  of  Not  guilty,  before  Rolfe,  B.,  it  ap- 
peared that  the  words  were  uttered  by  the  defendant,  a  toll  collector,  to 
the  plaintiff,  as  he  passed  the  turnpike  gate,  in  the  presence  of  several 
persons  as  well  as  the  witness.  The  nature  of  the  previous  conversation 
between  the  plaintiff  and  defendant  did  not  appear.  The  learned  Baron 
told  the  jury,  that  it  was  immaterial  whether  the  defendant  intended  to 
convey  a  charge  of  felony  against  the  plaintiff  by  the  words  used,  the 
question  being,  whether  the  bystanders  would  understand  that  charge 
to  be  conveyed  by  them.  Verdict  for  the  plaintiff  for  £5. 

Humfrey  now  moved  for  a  new  trial,  on  the  ground  of  misdirec- 
tion: No  special  damage  being  laid,  it  was  necessary  to  show  the 
words  to  be  actionable  in  themselves.  The  witness  called  by  the  plain- 
tiff to  prove  the  words  was  purposely  selected,  he  not  having  heard  the 
previous  conversation  between  the  plaintiff  and  defendant.  *  *  * 

PARKS,  B.  The  witness  appears  to  have  been  well  acquainted  with 
the  affair  to  which  the  words  related.  If  the  bystanders  were  equally 
cognizant  of  it,  the  defendant  would  have  been  entitled  to  a  verdict; 
but  here  the  only  question  is,  whether  the  private  intention  of  a  man 
who  utters  injurious  words  is  material,  if  bystanders  may  fairly  un- 
derstand them  in  a  sense  and  manner  injurious  to  the  party  to  whom 
they  relate,  e.  g.  that  he  was  a  felon. 

Some  doubt  being  suggested  as  to  the  facts  proved,  the  court  con- 
ferred with  ROLFE,  B. ;  and  the  next  day, 

POLLOCK,  C.  B.,  said :  We  find  from  my  Brother  ROLFE  that  there 
were  several  bystanders  who  not  only  might  but  must  have  heard  the 
expressions  which  form  the  subject  of  this  action.  That  disposes  of 
the  case  as  to  the  matter  of  law.  Words  uttered  must  be  construed  in 
the  sense  which  hearers  of  common  and  reasonable  understanding 
would  ascribe  to  them,  even  though  particular  individuals  better  in- 
formed on  the  matter  alluded  to  might  form  a  different  judgment  on 
the  subject. 

Rule  refused. 


156  INJURIES  TO   REPUTATION — DEFAMATION 

i 

III.  Matter  Defamatory  Per  Se 
1.  IMPUTATION  OF  CRIME* 


WEBB  v.  BEAVAN. 

• 

(Queen's  Bench  Division,  1883,  11  Q.  B.  Dlv.  609.) 

Demurrer  to  a  statement  of  claim  which  alleged  that  the  defendant 
falsely  and  maliciously  spoke  and  published  of  the  plaintiff  the  words 
following:  "I  will  lock  you"  (meaning  the  plaintiff)  "up  in  Glouces- 
ter Gaol  next  week.  I  know  enough  to  put  you"  (meaning  the  plain- 
tiff) "there"  (meaning  thereby  that  the  plaintiff  had  been  and  was 
guilty  of  having  committed  some  criminal  offence  or  offences).  The 
plaintiff  claimed  £500  damages. 

Demurrer,  on  the  ground  that  the  statement  of  claim  did  not  allege 
circumstances  shewing  that  the  defendant  had  spoken  or  published 
of  the  plaintiff  any  actionable  language,  and  that  no  cause  of  action 
was  disclosed.  Joinder  in  demurrer. 

W.  H.  Nash,  in  support  of  the  demurrer,  contended  that,  in  order 
to  make  the  words  actionable,  the  innuendo  should  have  alleged  that 
they  imputed  an  offence  for  which  the  plaintiff  could  have  been  in- 
dicted, and  that  it  was  not  sufficient  to  allege  that  they  imputed  a 
criminal  offence  merely.  He  referred  to  Odgers  on  Libel  and  Slander, 
p.  54. 

Hammond  Chambers,  contra,  contended  that,  according  to  the 
earlier  authorities,  the  test,  in  ascertaining  whether  words  were  ac- 
tionable per  se,  was  whether  the  offence  imputed  was  punishable  cor- 
porally or  by  fine,  and  that  it  was  not  necessary  to  allege  that  the 
words  imputed  an  indictable  offence.  He  cited  Com.  Dig.  tit.  Action 
on  the  Case  for  Defamation,  D.  5  and  9 ;  Curtis  v.  Curtis,  10  Bing.  477. 

POLLOCK,  B.  I  am  of  opinion  that  the  demurrer  should  be  over- 
ruled. The  expression  "indictable  offence"  seems  to  have  crept  into 
the  text-books,  but  I  think  the  passages  in  Comyns'  Digest  are  conclu- 
sive to  shew  that  words  which  impute  any  criminal  offence  are  ac- 
tionable per  se.  The  distinction  seems  a  natural  one,  that  words  im- 
puting that  the  plaintiff  has  rendered  himself  liable  to  the  mere  in- 
fliction of  a  fine  are  not  slanderous,  but  that  it  is  slanderous  to  say 
that  he  has  done  something  for  which  he  can  be  made  to  suffer  cor- 
porally. 

LOPES,  J.  I  am  of  the  same  opinion.  I  think  it  is  enough  to  allege 
that  the  words  complained  of  impute  a  criminal  offence.  A  great  num- 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  6S-71. 


MATTER    DEFAMATORY   PER  SB  157 

her  of  offences  which  were  dealt  with  by  indictment  twenty  years  ago 
are  now  disposed  of  summarily,  but  the  effect  cannot  be  to  alter  the 
law  with  respect  to  actions  for  slander. 
Demurrer  overruled. 


BROOKER  v.  COFFIN. 

(Supreme  Court  of  Judicature  of  New  York,  1809.     5  Johns.  188, 
4  Am.  Dec.  337.) 

Action  for  slander. 

SPENCER,  J.6  The  first  count  is  for  these  words,  "She  is  a  common 
prostitute,  and  I  can  prove  it ;"  and  the  question  arises,  whether  speak- 
ing these  words  gives  an  action,  without  alleging  special  damages.  By 
the  statute  (1  Rev.  Laws  1813,  p.  114)  common  prostitutes  are  adjudg- 
ed disorderly  persons,  and  are  liable  to  commitment,  by  any  justice  of 
the  peace,  upon  conviction,  to  the  Bridewell  or  House  of  Correction, 
to  be  kept  at  hard  labor  for  a  period  not  exceeding  60  days,  or  until 
the  next  General  Sessions  of  the  Peace.  It  has  been  supposed  that, 
therefore,  to  charge  a  woman  with  being  a  common  prostitute  was 
charging  her  with  such  an  offense  as  would  give  an  action  for  slander. 

The  same  statute  which  authorizes  the  infliction  of  imprisonment 
on  common  prostitutes  or  disorderly  persons,  inflicts  the  same  pun- 
ishment for  a  great  variety  of  acts,  the  commission  of  which  renders 
the  persons  liable  to  be  considered  disorderly ;  and  to  sustain  this  ac- 
tion would  be  going  the  whole  length  of  saying,  that  every  one  charg- 
ed with  any  of  the  acts  prohibited  by  that  statute,  would  be  entitled 
to  maintain  an  action  for  defamation.  Among  others,  to  charge  a  per- 
son with  pretending  to  have  skill  in  physiognomy,  palmistry,  or  pre- 
tending to  tell  fortunes,  would,  if  this  action  is  sustained,  be  actiona- 
ble. Upon  the  fullest  consideration  we  are  inclined  to  adopt  this  as 
the  safest  rule,  and  one  which,  as  we  think,  is  warranted  by  the  cases. 
In  case  the  charge,  if  true,  will  subject  the  party  charged  to  an  indict- 
ment for  a  crime  involving  moral  turpitude,  or  subject  him  to  an  in- 
famous punishment,  then  the  words  will  be  in  themselves  actionable; 
and  Baron  Comyns  considers  the  test  to  be,  whether  the  crime  is  in- 
dictable or  not.  1  Com.  tit.  Action  on  the  Case  for  Defamation,  F,  20. 
There  is  not,  perhaps,  so  much  uncertainty  in  the  law  upon  any  sub- 
ject, as  when  words  shall  be  in  themselves  actionable.  From  the  con- 
tradiction of  cases,  and  the  uncertainty  prevailing  on  this  head,  the 
court  think  they  may,  without  overleaping  the  bounds  of  their  duty, 
lay  down  a  rule  which  will  conduce  to  certainty,  and  they,  therefore, 
adopt  the  rule  I  have  mentioned  as  the  criterion.  In  our  opinion, 
therefore,  the  first  count  in  the  declaration  is  defective.  *  *  * 

The  defendant  must,  therefore,  have  judgment. 

«  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


158  INJURIES  TO   REPUTATION — DEFAMATION 


FANNING  v.  CHACE. 

(Supreme  Court  of  Rhode  Island,  1891.     17  R.  I.  388,  22  Atl.  275,  13  L.  R.  A. 
134,  33  Am.  St.  Rep.  878.) 

TILUNGHAST,  J.  This  is  an  action  of  trespass  on  the  case  for  slan- 
der. The  declaration,  to  which  the  defendant  xlemurs,  sets  out  that 
the  plaintiff  is  a  licensed  retail  liquor  dealer  in  the  city  of  Providence, 
and  has  been  such  for  a  long  time.  That,  anticipating  a  renewal  of 
his  license  for  the  year  1890-91,  he  made  large  purchases  of  liquor  in 
advance,  and  also  refitted  and  refurnished  his  saloon  at  large  expense. 
That  the  defendant,  well  knowing  the  premises,  but  intending  to  injure 
him,  the  plaintiff,  and  prevent  him  from  again  procuring  a  license  for 
the  carrying  on  of  his  said  business,  in  the  presence  and  hearing 
of  divers  good  citizens,  uttered,  declared,  and  published  the  following 
false,  scandalous,  and  malicious  words  of  and  concerning  the  plaintiff, 
viz. :  "He  [meaning  the  plaintiff]  is  going  to  start  a  house  of  ill  fame,, 
[meaning  a  house  to  be  kept  for  the  purposes  of  prostitution] ,  so  sign 
a  protest  against  him  [meaning  the  plaintiff]" — meaning  and  intending 
thereby  that  said  plaintiff  was  going  to  start  a  house  to  be  kept  and 
maintained  for  the  purposes  of  prostitution;  and  that  said  plaintiff 
ought  not  to  be  granted  a  license  to  carry  on  the  business  of  retail 
liquor  dealer  as  he  desired,  in  accordance  with  his  application  on  file 
in  the  office  of  the  license  commissioners  in  said  city,  and  to  therefore 
sign  a  written  remonstrance  protesting  that  said  plaintiff  ought  to  be 
refused  a  license,  which  said  defendant  then  and  there  presented  to 
said  people.  The  declaration  further  sets  out  that,  in  consequence 
of  the  uttering  and  publishing  of  said  words  by  the  defendant,  the 
majority  of  persons  owning  the  greater  part  of  the  land  within  200 
feet  of  the  said  saloon,  or  who  were  occupants  of  it,  signed  a  re- 
monstrance protesting  that  license  should  not  be  granted  to  the  plain- 
tiff to  carry  on  said  business,  whereupon  said  license  commissioners 
refused  to  grant  such  license,  and  were  rendered  unable  to  grant  the 
same ;  and  alleging  special  damage. 

The  principal  ground  urged  in  support  of  the  demurrer  is  that  the 
words  complained  of,  since  they  do  not  amount  to  an  imputation  of  the 
commission  of  an  offense,  but  only  to  a  charge  of  an  intention  to  com- 
mit one,  are  not  actionable  either  per  se,  or  from  having  caused  special 
damage.  The  main  question  raised  by  the  demurrer  therefore  is  this, 
viz. :  Are  words  actionable  which  merely  impute  a  criminal  intention 
to  another?  We  think  this  question  must  be  answered  in  the  negative. 
Words  which  falsely  charge  a  person  with  the  commission  of  a  crim- 
inal offense  are  actionable  upon  the  familiar  ground  that  they  may 
endanger  him  by  subjecting  him  to  the  penalties  of  the  law,  and  render 
him  infamous  in  the  community.  But  the  charge,  in  order  to  be  ob- 
noxious to  the  law,  must  be  an  offense  actually  committed  or  attempted 
— a  punishable  offense — and  not  of  an  offense  existing  in  contempla- 


MATTER   DEFAMATORY   PER   SE  159 

tion  or  intention  merely;  for  the  law  does  not  take  cognizance  of  one's 
intentions  merely,  however  malicious  or  wicked  they  may  be,  but  only 
takes  cognizance  thereof  when  coupled  with  and  giving  significance 
to  his  acts.  So  that,  in  order  to  render  one's  intent  of  any  im- 
portance in  the  eye  of  the  law,  it  must  be  combined  with  his  act.  It 
therefore  follows  that,  as  mere  intent  to  commit  a  crime  is  not  a  vio- 
lation of  the  law,  and  hence  not  punishable,  to  accuse  one  of  having 
such  an  intent  is  not  to  accuse  him  of  any  crime  or  offense.  The 
language  which  the  plaintiff  complains  of  as  being  slanderous  is  this : 
"He  is  going  to  start  a  house  of  ill  fame."  This  language,  if  indeed 
it  is  anything  more  than  the  expression  of  an  opinion  on  the  part  of 
the  defendant,  does  not  amount  to  a  charge  of  any  crime  or  offense, 
or  even  of  an  attempt  to  commit  one.  That  such  a  charge  is  not  ac- 
tionable is  one  of  the  few  things  in  the  law  of  slander  which  is  evi- 
dently settled  beyond  controversy.  The  law  upon  this  point  is  well 
stated  in  the  American  Encyclopaedia  of  Law  (volume  13,  p.  353)  as 
follows:  "Words  which  merely  impute  a  criminal  intention,  not  yet 
put  into  action,  are  not  actionable.  Guilty  thoughts  are  not  a  crime. 
But  as  soon  as  any  step  is  taken  to  carry  out  such  intention,  as  soon 
as  any  overt  act  is  done,  an  attempt  to  commit  a  crime  has  been  made ; 
and  every  attempt  to  commit  an  indictable  offense  is,  at  common  law, 
a  misdemeanor,  and  in  itself  indictable.  To  impute  such  an  attempt  is, 
therefore,  clearly  actionable."  In  Cornelius  v.  Van  Slyck,  21  Wend. 
(N.  Y.)  70,  71,  the  court,  in  speaking  of  the  sense  in  which  the  words 
should  be  taken,  say:  "Where  they  plainly  import  a  charge  of  mere 
intention  to  do  a  criminal  act,  or  only  amount  to  an  assertion  that 
the  plaintiff  will  do  it  at  a  future  time,  they  are  not  actionable."  In 
Seaton  v.  Cordray,  Wright  (Ohio)  101,  the  court  say:  "An  action  may 
be  sustained  for  charging  another  with  being  a  thief,  or  with  having 
stolen,  but  not  for  imputing  a  mere  intention  to  steal,  or  with  having 
an  evil  disposition.  The  foundation  of  the  slander  is  that  the  charge, 
if  true,  would  subject  the  accused  to  infamous  punishment;  an  evil 
disposition,  without  act,  cannot  so  subject  any  one."  See,  also, 
Townsh.  Sland.  &  L.  (3d  Ed.)  161 ;  McKee  v.  Ingalls,  4  Scam.  (111.)  30; 
Harrison  v.  Stratton,  4  Esp.  218;  Wilson  v.  Tatum,  53  N.  C.  300; 
Stoner  v.  Audely,  Cro.  Eliz.  250;  Dr.  Poe's  Case,  cited  in  Murrey  v. 

,  2  Bulst.  206;    1  Vin.  Abr.  440;    Odgers,  Sland.  &  L.  57; 

Sillars  v.  Collier,  151  Mass.  50,  53,  54,  23  N.  E.  723,  6  L.  R.  A.  680. 
But  the  plaintiff  contends,  in  support  of  his  declaration,  that  any  de- 
famatory or  disparaging  words  spoken  of  another,  which  cause  special 
damage,  are  actionable.  While  we  cannot  subscribe  to  quite  so  broad  a 
statement  of  the  law  as  this,  yet  we  think  that  the  proposition  is 
substantially  correct;  that  is  to  say,  that  false,  defamatory  words, 
spoken  of  another,  are  either  actionable  per  se,  or  by  reason  of  having 
caused  special  damage.  We  do  not  think,  however,  that  the  words 
relied  on  in  the  declaration  are  defamatory,  within  the  legal  meaning 


160  INJURIES  TO   REPUTATION DEFAMATION 

of  that  term.  To  defame  another  by  language  is  to  harm  or  destroy 
his  good  fame  or  reputation,  or  to  disgrace  or  calumniate  him.  In 
order  to  have  this  evil  effect,  however,  it  is  evident  that  the  language 
used  concerning  him  must  relate  to  his  conduct  or  character  as  they 
now  are  or  have  been  in  the  past,  and  not  be  the  mere  opinion  of  the 
speaker  as  to  what  they  will  be  at  some  indefinite  period  in  the  future. 
In  other  words,  that  language  which  amounts  to  a  mere  assertion  or 
opinion  as  to  what  will  be  the  future  conduct  or  character  of  another 
is  not  actionable ;  but  that  it  is  only  actionable  when  it  relates  to  what 
the  person  now  is,  or  has  been  in  the  past,  or  to  what  he  is  doing  or 
attempting  to  do,  or  has  done  or  attempted  to  do  in  the  past ;  that  is, 
when  it  relates  to  something  actual,  instead  of  something  which  is 
merely  imaginary  or  conjectural.  The  character  of  a  man  is  what 
he  now  is,  and  not  what  he  may  be  at  some  future  time.  Among  the 
multitude  of  different  forms  of  expression  found  in  the  books  which 
have  been  held  to  be  actionable  we  have  been  unable  to  find  any  case, 
nor  have  we  been  referred  to  any,  in  which  language  analogous  to 
that  relied  on  in  the  plaintiff's  declaration  has  been  held  sufficient  to 
maintain  an  action  for  slander.  Demurrer  sustained. 


2.  CONTAGIOUS  OR  INFECTIOUS  DISEASE  T 


COUNT  JOANNES  v.  BURT. 

(Supreme  Judicial  Court  of  Massachusetts,  1863.,  6  Allen,  236,  83 
Am.  Dec.  625.) 

Tort  brought  in  the  name  of  "George,  the  Count  Joannes,"  seeking 
to  recover  damages  for  slander.  The  defendant  demurred  to  the 
declaration  as  not  setting  forth  any  legal  cause  of  action. 

HOAR,  J.8  *  *  *  The  declaration  is  in  tort  for  slander,  by  orally 
imputing  insanity  to  the  plaintiff.  We  are  aware  of  no  authority  for 
maintaining  such  an  action,  without  the  averment  of  special  damage. 
The  authorities  upon  which'the  plaintiff  relies  are  both  cases  of  libel. 
The  King  v.  Harvey,  2  B.  &  C.  257;  Southwick  v.  Stevens,  10  Johns. 
(N.  Y.)  443.  An  action  for  oral  slander,  in  charging  the  plaintiff  with 
disease,  has  been  confined  to  the  imputation  of  such  loathsome  and  in- 
fectious maladies  as  would  ^ake  him  an  object  of  disgust  and  aver- 
sion, and  banish  him  from  human  society.  We  believe  the  only  ex- 
amples which  adjudged  cases  furnish  are  of  the  plague,  leprosy,  and 
venereal  disorders.  *  *  * 

Appeal  dismissed. 

i  For  discussion  of  principles,,  see  Chapin  on  Torts,  §§  68-74. 

«  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


MATTER  DEFAMATORY  PER  SE  161 


3.  TENDENCY  TO  PREJUDICE  PARTY  IN  OFFICE,  TRADE  OR 
PROFESSION  9 


SECOR  v.  HARRIS. 
(Supreme  Court  of  New  York,  General  Term,  1854.    18  Barb.  425.) 

MASON,  J.  This  is  an  action  for  slander.  Upon  trial  of  the  cause, 
the  plaintiff  proved  the  following  words,  which  were  also  alleged  in 
the  complaint:  "Dr.  Secor  killed  my  children."  "He  gave  them  tea- 
spoonful  doses  of  calomel,  and  they  died."  "Dr.  Secor  gave  them  tea- 
spoonful  doses  of  calomel,  arid  it  killed  them;  they  did  not  live  long 
after  they  took  it.  They  died  right  off — the  same  day."  The  plaintiff 
was  proved  to  be  a  practicing  physician,  and  the  evidence  shows  that 
he  had  practiced  in  the  defendant's  family,  and  had  prescribed  for 
the  defendant's  children,  and  that  the  words  were  spoken  of  him  in 
his  character  of  a  physician.  The  plaintiff  claimed  that  the  words 
were  actionable,  and  that  he  was  entitled  to  have  this  branch  of  the 
case,  upon  the  words,  submitted  to  the  jury.  The  judge  at  the  circuit 
held  that  the  words  were  not  actionable,  and  took  them  from  the  con- 
sideration of  the  jury.  These  words  spoken  of  the  plaintiff  as  a  physi- 
cian are  actionable  per  se,  whatever  may  be  said  upon  the  question 
whether  they  impute  a  criminal  offense.  They  do  not  impute  a  crimi- 
nal offense,  unless  there  is  evidence,  arising  from  the  quantity  of  the 
calomel  which  the  defendant  alleged  that  the  plaintiff  gave  these  chil- 
dren, from  which  a  jury  would  be  justified  in  finding  an  intention  to 
kill  them.  One  of  them  was  three  years  of  age,  and  the  other  one 
year  and  a  half.  If  the  natural  result,  which  should  reasonably  be  ex- 
pected from  feeding  children  of  such  tender  years  full  teaspoon 
doses  of  calomel,  would  be  certain  death,  then  it  is  not  a  forced  con- 
struction of  the  words  to  say  that  the  defendant  intended  to  charge 
the  plaintiff  with  an  intention  to  kill  these  children  in  giving  them 
such  doses.  It  is  not  necessary,  however,  to  say  that  the  judge  should 
have  submitted  this  case  to  the  jury  upon  the  question  whether  the 
defendant  did  not  intend  to  impute  to  the  plaintiff  by  these  words  a 
criminal  offense.  I  am  quite  inclined  to  think,  however,  that  had  the 
judge  submitted  the  case  to  the  jury  upon  the  imputation  of  a  criminal 
intent  in  these  words,  and  had  the  jury  found  that  such  intent  was 
imputed,  we  should  not  be  justified  in  setting  .aside  their  verdict.  It 
is  not  necessary,  however,  to  place  the  case  upon  this  ground ;  for  it  is 
certainly  slanderous  to  say  of  a  physician  that  he  killed  these  children 
of  such  tender  years,  by  giving  them  teaspoonful  doses  of  calomel. 

9  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  68-74. 
CH  AP  .  C  AS  .  TOBTS — 11 


162  INJURIES  TO   REPUTATION DEFAMATION 

The  charge,  to  say  the  least,  imports  such  a  total  ignorance  of  his  pro- 
fession as  to  destroy  all  confidence  in  the  physician.  It  is  a  disgrace 
to  a  physician  to  have  it  believed  that  he  is  so  ignorant  of  this  most 
familiar  and  common  medicine  as  to  give  such  quantities  thereof  to 
such  young  children.  The  law  is  well  settled  that  words  published  of 
a  physician,  falsely  imputing  to  him  general  ignorance  or  want  of  skill 
in  his  profession,  are  actionable,  in  themselves,  on  the  ground  of  pre- 
sumed damage.  Starkie  on  Slander,  100,  110,  115;  Martyn  v.  Bur- 
lings,  Cro.  Eliz.  589;  Bac.  Abr.  tit.  "Slander,"  B;  Watson  v.  Van 
Derdash,  Het.  69;  Tutler  v.  Alwin,  11  Mod.  221;  Smith  v.  Taylor,  1 
New  R.  196 ;  Sumner  v.  Utley,  7  Conn.  257.  I  am  aware  that  it  was 
held  in  the  case  of  Poe  v.  Mendford,  Cro.  Eliz.  620,  that  it  is  not  ac- 
tionable to  say  of  a  physician,  "He  hath  killed  a  patient  with  physic," 
and  that,  upon  the  strength  of  the  authority  of  that  case,  it  was  de- 
cided in  this  court  in  Foot  v.  Brown,  8  Johns.  64,  that  it  was  not  ac- 
tionable to  say  of  an  attorney  or  counselor,  when  speaking  of  a  par- 
ticular suit,  "He  knows  nothing  about  the  suit;  he  will  lead  you  on 
until  he  has  undone  you."  These  cases  are  not  sound.  The  case  of 
Poe  v.  Mendford  is  repudiated  in  Bacon's  Abridgment  as  authority, 
and  cases  are  referred  to  as  holding  a  contrary  doctrine.  Volume  9, 
pp.  49,  50.  The  cases  of  Poe  v.  Mendford  and  of  Foot  v.  Brown  were 
reviewed  by  the  supreme  court  of  Connecticut  in  the  case  of  Sumner 
v.  Utley,  7  Conn.  257,  with  most  distinguished  ability,  and  the  doctrine 
of  those  cases  repudiated.  In  the  latter  case  it  is  distinctly  held  that 
words  are  actionable  in  themselves  which  charge  a  physician  with  ig- 
norance or  want  of  skill  in  his  treatment  of  a  particular  patient,  if  the 
charge  be  such  as  imports  gross  ignorance  or  unskillfulness.  To  the 
same  effect  is  the  case  of  Johnson  v.  Robertson,  8  Port.  (Ala.)  486, 
where  it  was  held  that  the  following  words,  spoken  of  a  physician  in 
regard  to  his  treatment  of  a  particular  case,  "He  killed  the  child  by 
giving  it  too  much  calomel,"  are  actionable  in  themselves;  and  such 
is  the  case  of  Tutler  v.  Alwin,  11  Mod.  221,  where  it  was  held  to  be 
actionable  to  say  of  an  apothecary  that  "he  killed  a  patient  with  phys- 
ic." See,  also,  3  Wilson,  186;  Bac.  Abr.  tit.  "Slander,"  letter  B  2,  vol. 
9,  p.  49  (Bouy.  Ed.).  The  cases  of  Poe  v.  Mendford  and  Foot  v.  Brown 
have  been  repudiated  by  the  highest  judicial  tribunal  in  two  of  the 
American  states,  while  the  case  of  Poe  v.  Mendford  seems  to  have 
been  repudiated  in  England;  and  I  agree  with  Clinch,  Justice,  that 
the  reason  upon  which  that  case  is  decided  is  not  apparent.  I  do  not 
go  the  length  to  say  that  falsehood  may  not  be  spoken  of  a  physician's 
practice,  in  a  particular  case,  without  subjecting  the  party  to  this  ac- 
tion. A  physician  may  mistake  the  symptoms  of  a  patient,  or  may 
misjudge  as  to  the  nature  of  his  disease,  and  even  as  to  the  powers  of 
medicine,  and  yet  his  error  may  be  of  that  pardonable  kind  that  will 
do  him  no  essential  prejudice,  because  it  is  rather  a  proof  of  human 
imperfection  than  of  culpable  ignorance  or  unskillfulness;  and,  where 


MATTER   DEFAMATORY   PER  SB  1G3 

charges  are  made  against  a  physician  that  fall  within  this  class  of  cas- 
es, they  are  not  actionable  without  proof  of  special  damages.  7  Conn. 
257.  It  is  equally  true  that  a  single  act  of  a  physician  may  evince 
gross  ignorance,  and  such  a  total  want  of  skill  as  will  not  fail  to  in- 
jure his  reputation,  and  deprive  him  of  general  confidence.  When 
such  a  charge  is  made  against  a  physician,  the  words  are  actionable 
per  se.  7  Conn.  257.  The  rule  may  be  laid  down  as  a  general  one 
that,  when  the  charge  implies  gross  ignorance  and  unskillfulness  in 
his  profession,  the  words  are  actionable  per  se.  This  is  upon  the 
ground  that  the  law  presumes  damage  to  result  from  the  very  nature 
of  the  charge.  The  law  in  such  a  case  lays  aside  its  usual  strictness ; 
for  when  the  presumption  of  damage  is  violent,  and  the  difficulty  of 
proving  it  is  considerable,  the  law  supplies  the  defect,  and,  by  con- 
verting presumption  into  proof,  secures  the  character  of  the  sufferer 
from  the  misery  of  delay,  and  enables  him  at  once  to  face  the  calumny 
in  open  court.  Starkie  on  Slander,  581.  It  was  well  said  by  the  learn- 
ed Chief  Justice  Hosmer  in  Sumner  v.  Utley,  7  Conn.  257,  that:  "As 
a  general  principle,  it  can  never  be  admitted  that  the  practice  of  a 
physician  or  surgeon  in  a  particular  case  may  be  calumniated  with  im- 
punity, unless  special  damage  is  shown.  By  confining  the  slander  to 
particulars,  a  man  may  thus  be  ruined  in  detail.  A  calumniator  might 
follow  the  track  of  the  plaintiff,  and  begin  by  falsely  ascribing  to  a 
physician  the  killing  of  three  persons  by  mismanagement,  and  then 
the  mistaking  an  artery  for  a  vein,  and  thus  might  proceed  to  mis- 
represent every  single  case  of  his  practice,  until  his  reputation  should 
be  blasted  beyond  remedy.  Instead  of  murdering  character  by  one 
stroke,  the  victim  would  be  cut  successively  in  pieces,  and  the  only 
difference  would  consist  in  the  manner  of  effecting  the  same  result." 
It  is  true,  as  was  said  by  the  learned  Chief  Justice  Hosmer  in  that 
case,  the  redress  proposed,  on  the  proof  of  special  damage,  is  inade- 
quate to  such  a  case.  Much  time  may  elapse  before  the  fact  of  dam- 
age admits  of  any  evidence,  and  then  the  proof  will  always  fall  short 
of  the  mischief.  In  the  meantime  the  reputation  of  the  calumniated 
person  languishes  and  dies,  and  hence,  as  we  have  before  said,  the 
presumption  of  damage  being  violent,  and  the  difficulty  of  proving  it 
considerable,  the  law  supplies  the  defect  by  converting  presumption 
of  damage  into  proof  (Starkie  on  Slander,  581) ;  in  other  words,  the 
law  presumes  that  damages  result  from  the  speaking  of  the  words.  In 
the  case  under  consideration;  the  words  proved  impute  to  the  plain- 
tiff such  gross  ignorance  of  his  profession,  if  nothing  more,  as  would 
be  calculated  to  destroy  his  character  wherever  the  charge  should  be 
credited.  It  would  be  calculated  to  make  all  men  speak  out  and  say. 
as  did  the  witness  Richard  Morris,  "that  it  was  outrageous,  and  the 
plaintiff  ought  not  to  be  permitted  to  practice."  The  law  will  there- 
fore presume  damages  to  result  from  the  speaking  of  the  words,  and 
consequently  hold  the  words  actionable  in  themselves.  The  judge  at 
the  circuit  erred  in  taking  this  branch  of  the  case  from  the  considera- 


164  INJURIES  TO   REPUTATION DEFAMATION 

tion  of  the  jury,  and  a  new  trial  must  be  granted,  costs  to  abide  the 
event  of  the  action. 

New  trial  granted.    CRIPPEN,  J.,  concurred.    SHANKLAND,  J.,  dis- 
sented. 


4. 


BUCKSTAFF  v.  VIALU 

(Supreme  Court  of  Wisconsin,  1893..    84  Wis.  129,  54  N.  W.  111.) 

ORTON,  J.  The  demurrer  to  the  second  count  of  the  complaint,  on 
the  ground  that  it  did  not  state  a  cause  of  action,  was  overruled,  and 
the  defendant  has  appealed  from  said  order.  The  action  is  for  libel. 
The  complaint  substantially  sets  forth  the  following  libelous  matter: 
The  plaintiff  was  a  resident  of  the  city  of  Oshkosh,  Winnebago  county, 
in  this  state,  and  a  state  senator  of  the  nineteenth  senatorial  district, 
comprising  a  large  portion  of  said  county,  at  the  date  hereinafter 
stated.  The  defendant  was  at  the  same  time  doing  business  in  said 
city  as  a  publisher,  under  the  name  of  E.  W.  Viall  &  Co.,  and  the  sole 
owner  and  publisher  of  the  Oshkosh  Times,  a  daily  newspaper  of  wide  • 
circulation,  and  published  in  said  city.  The  defendant,  on  the  19th 
day  of  March,  1889,  maliciously  published  in  said  newspaper  an  edi- 
torial article  containing  the  following  false  and  defamatory  matter 
concerning  the  plaintiff,  to  wit:  "A  Prayer  to  Bucksniff  [meaning  the 
plaintiff].  It  hath  ever  been  the  custom,  from  time  immemorial,  to 
appease  the  wrath  or  obtain  the  favor  of  the  gods  through  the  medium 
of  prayer.  Oshkosh  is  now  in  a  situation  where  a  resort  to  this  means 
of  grace  is  advisable.  Through  her  representatives  in  council,  she  has 
asked  the  passage  of  certain  amendments  of  her  charter.  These  can 
be  obtained  through  divine  favor  of  Senator  Bucksniff  [meaning  the 
plaintiff],  the  legislative  god  of  Winnebago  county.  His  majesty, 
Bucksniff  [meaning  the  plaintiff],  under  the  pretense  of  consulting 
some  of  his  friends,  who  are  a  number  of  well-known  little  political 
gods  of  Oshkosh,  intends  to  defeat  these  amendments  by  procrastina- 
tion and  delay  until  it  is  too  late  for  their  adoption  by  the  legislature 
in  time  for  the  spring  election.  As  the  means  of  obtaining  the  favor  of 
this  wonderful  legislative  god,  his  majesty,  Bucksniff  [meaning  the 
plaintiff]  ,  the  Times  recommends  that  the  citizens  of  Oshkosh  offer  up 
to  him  the  following  prayer  :  'We  are  sensible,  O  dearly-beloved  Buck- 
sniff  [meaning  the  plaintiff],  of  thy  great  wisdom  and  power,  and 
humbly  beseech  thee  that  thou  wilt  favor  us  with  certain  amendments 
to  our  city  charter.  Know  thou,  O  divine  senator  [meaning  the  plain- 

i°  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  68-74. 


MATTER   DEFAMATORY   PER   SB  165 

tiff],  compared  with  whom  all  other  senators  are  merely  ciphers  who 
draw  per  diem  and  mileage  from  the  state  [meaning  the  opposite], 
wilt  thou  make  and  ordain  certain  great  and  wise  laws,'  etc.  'Know, 
thou,  also,  mighty,  eloquent,  and  beautiful  senatorial  god,'  etc.  [mean- 
ing this  plaintiff,  and  intending,  by  irony  and  sarcasm  in  the  words 
used,  to  sneer  at  and  ridicule  the  deformity  of  the  plaintiff,  caused  by 
a  partial  paralysis  on  one  side  of  his  face  and  body] .  'While  it  is  within 
thy  mighty  power  to  defeat  the  will  of  the  people  of  Oshkosh,  forget, 
O  mighty  being  [meaning  the  plaintiff] ,  the  advice  of  thy  friends,  the 
little  republican  ward  gods,  and  look  with  thy  mighty  right  eye  alone,' 
etc.  [meaning  the  plaintiff,  and  again,  in  an  ironical  sense,  alluding  to 
the  partial  paralysis  of  this  plaintiff] .  'And,  in  conclusion,  thou  divine 
South  Side  dictator  [meaning  the  plaintiff],  we  implore  that  thou  wilt 
reconsider  thy  determination  to  defeat  the  laws,'  etc.  *  *  *  There 
will  be  one  chance  in  fifty,  at  least,  of  his  Third  ward  omnipotence 
[meaning  the  plaintiff]  surrendering  his  own  wishes,  and  following 
those  of  the  people."  This  publication  greatly  injured  the  plaintiff  in 
his  office  as  senator,  and  in  his  reputation,  and  brought  him  into  public 
ridicule  and  contempt.  The  plaintiff  demands  $30,000  and  costs.  The 
words  more  especially  libelous  are:  "Prayer  to  Bucksniff;"  "Divine 
favor  of  Senator  Bucksniff;"  "The  legislative  god  of  Winnebago 
county;"  "His  majesty,  Bucksniff;"  "We  are  sensible,  O  dearly- 
beloved  Bucksniff,  of  thy  great  wisdom  and  power,  and  humbly  beseech 
thee;"  "Know  thou,  O  divine  senator,  compared  with  whom  all  other 
senators  are  merely  ciphers ;"  "Know  thou,  also,  mighty,  eloquent,  and 
beautiful  senatorial  god ;"  "Forget,  O  mighty  being,  the  advice  of  thy 
friends,  the  little  republican  ward  gods,  and  look  with  thy  mighty  right 
eye  alone  to  the  good  of  the  city;"  "Thou  divine  South  Side  dictator, 
we  implore,"  etc. ;  "Third  ward  omnipotence." 

The  grounds  of  the  demurrer  are:  (1)  That  the  article  is  not  libel- 
ous ;  (2)  that  it  is  privileged ;  (3)  that  the  innuendoes  cannot  make  the 
matter  libelous  which  is  otherwise  not  so.  The  complaint  charges  that 
the  defendant  published  the  article  maliciously,  and  of  and  concerning 
the  plaintiff.  It  begins  in  the  form  and  heading  of  a  prayer  to  Buck- 
sniff  (meaning  the  plaintiff). 

The  name  itself  is  libelous.  It  is  a  nickname  which  is  a  name  of 
reproach,  and  an  opprobrious  appellation,  and  is  in  the  similitude  of 
"Pecksniff,"  one  of  the  familiar  and  most  contemptible  characters  in 
Dickens,  and  readily  suggests  that  name  to  the  reader,  and  it  is  re- 
peated several  times.  It  is  used  to  excite  ridicule  and  contemptuous 
derision.  He  is  called  "Senator  Bucksniff"  to  more  clearly  show  it 
was  meant  for  the  plaintiff.  The  article  is  of  and  concerning  the  plain- 
tiff as  senator  of  Winnebago  county.  He  is  also  called  "His  majesty, 
Bucksniff,"  "A  legislative  god,"  "Dearly-beloved  Bucksniff,"  "Divine 
senator,"  "Mighty  being,"  "Omnipotence."  These  appellations  may 
mean  that  he  is  vain,  self-conceited,  pompous,  self-aggrandizing,  and 


166  INJURIES  TO   REPUTATION DEFAMATION 

assumes  a  despotic  and  god-like  character  above  his  constituents  and 
all  other  men,  and  has  to  be  prayed  to  and  beseeched  for  legislative 
favors;  or  it  may  be,  and  probably  is,  ironical,  which  is  a  kind  of 
ridicule  which  expresses  a  fault  and  apparent  assent,  but  meaning  the 
opposite, — that  is,  that  he  is  not  the  greatest,  but  the  smallest  and 
meanest ;  or  sarcastical  or  satirical,  indicating  scorn,  contempt,  a  taunt 
or  a  gibe.  These  very  words  and  phrases  are  per  se  libelous.  "That 
which  is  written  or  printed  and  published,  calculated  to  injure  the 
character  of  another,  by  bringing  him  into  ridicule  or  contempt,"  or 
"tends  to  prejudice  him  in  his  office,"  is  libelous  per  se,  by  all  the  au- 
thorities. The  address  to  the  plaintiff  as  "O  dearly-beloved  Bucksniff," 
is  ironical  and  contemptuous,  meaning  the  opposite, — hated,  despised 
Bucksniff.  The  whole  article,  in  its  general  scope  and  meaning,  is 
calculated  to  injure  the  plaintiff  in  his  reputation  and  character,  both 
as  a  citizen  and  a  senator,  by  bringing  him  into  shame,  disgrace,  hatred, 
scorn,  ridicule,  and  contempt,  and  is  grossly  libelous.  Gary  v.  Allen, 
39  Wis.  483 ;  Cottrill  v.  Cramer,  43  Wis.  242 ;  Solverson  v.  Peterson, 
64  Wis.  198,  25  N.  W.  14,  54  Am.  Rep.  607;  Bradley  v.  Cramer,  59 
Wis.  309,  18  N.  W.  268,  48  Am.  Rep.  511;  Lansing  v.  Carpenter,  9 
Wis.  541,  76  Am.  Dec.  281 ;  Spiering  v.  Andrae,  45  Wis.  330,  30 
Am.  Rep.  744.  The  phrases,  "beautiful  senatorial  god,"  "And  look 
with  thy  mighty  right  eye  alone,"  are  explained  by  a  colloquium,  not  by 
an  innuendo,  as  claimed  by  the  learned  counsel  of  the  appellant.  "An 
innuendo  is  to  define  the  defamatory  meaning  which  the  plaintiff  sets 
on  the  words,  and  show  how  they  came  to  have  that  defamatory  mean- 
ing, and  how  they  relate  to  the  plaintiff."  A  colloquium  is  the  state- 
ment of  extraneous  facts  and  circumstances  necessary  to  fully  under- 
stand the  defendant's  words.  The  complaint  states  that  these  words 
were  spoken  "to  sneer  at  and  ridicule  the  deformity  of  the  plaintiff, 
caused  by  a  partial  paralysis  of  one  side  of  his  face  and  body."  The 
learned  counsel  of  the  appellant  contends  that  they  have  no  such 
meaning.  But  that  is  a  question  for  the  jury,  on  the  proof  of  the  facts 
stated.  It  is  difficult  to  understand  what  these  phrases  do  mean,  if 
they  have  not  reference  to  some  bodily  deformity  that  gives  the  plain- 
tiff's face  an  ugly  or  disagreeable  appearance.  The  word  "beautiful"  is 
used  ironically,  to  mean  the  opposite  most  clearly,  and  the  "mighty 
right  eye  alone"  would  indicate  that  the  other  eye  was  closed  or  injur- 
ed. It  seems  very  probable  that  the  explanation  in  the  colloquium  is 
the  correct  one.  With  this  explanation,  the  phrases  are  clearly  libel- 
ous, as  exciting  ridicule,  contumely,  and  shame. 

Are  the  above  words  and  phrases  privileged?  "A  privileged  com- 
munication is  a  fair  comment  by  a  public  journal  upon  a  matter  of 
public  interest."  Starkie,  Sland.  &  L.  (Ed.  1877)  332.  If  this  article 
was  a  fair  or  reasonable  comment  upon  the  plaintiff's  official  conduct 
as  state  senator,  or  upon  his  neglect  of  his  legislative  duties,  and  that 
was  all,  it  might  be  privileged.  The  only  part  of  the  article  that 


DEFENSES  167 

can  be  called'  a  comment  upon  his  legislative  conduct  as  state 
senator  is  as  follows:  "His  majesty,  Bucksniff,  under  the  pretense," 
etc.,  "intends  to  defeat  these  amendments  [of  the  Oshkosh  city 
charter]  by  procrastination  and  delay  until  it  is  too  late  for  their  adop- 
tion by  the  legislature  in  time  for  the  spring  election."  This  part  of 
the  article,  standing  alone,  would  scarcely  be  libelous;  but  if  so,  it 
might  be  also  privileged.  But  those  parts  of  the  article,  and  the  most 
of  it,  which  we  have  considered  above,  have  no  necessary  connection 
with  this  unobjectionable  comment.  They  are  not  comments,  in  any 
sense,  upon  the  plaintiff's  legislative  course  of  action.  They  are  simply 
gibes,  taunts,  and  contemptuous  and  insulting  phrases;  and  most  of 
them  personally  addressing  and  alluding  to  the  plaintiff,  and  inde- 
pendent of  and  distinct  from  any  reasonable  comments  upon  his  per- 
sonal or  official  derelictions -of  duty,  and  are  not  justified  or  excused 
by  them.  They  are  clearly  not  privileged,  by  any  principle  of  law 

The  libelous  matter  of  the  article  is  not  enlarged  by  the  innuendoes. 
The  office  and  use  of  an  innuendo  are  stated  above,  and  are  in  the  com- 
plaint. It  is  used  mostly,  and  properly,  to  show  the  person  to  whom 
the  libelous  matter  relates.  The  second  count  of  the  complaint  clearly 
states  a  good  cause  of  action,  and  the  demurrer  was  properly  overruled. 
The  order  of  the  circuit  court  is  affirmed,  and  the  cause  remanded 
for  further  proceedings  at  law. 


IV.  Defenses 
1.  FAIR  COMMENT  1X 


SIR  JOHN  CARR,  Knt,  v.  HOOD  et  al. 

(London  Sittings,  after  Trinity  Term.  1808.     1  Camp.  355,  note, 
10  R.  R.  701,  note.) 

The  declaration  stated  that  the  plaintiff,  before  the  publishing  of 
any  of  the  libels  thereinafter  mentioned,  was  the  author  of  a  certain 
book  entitled  "The  Stranger  in  France,"  a  certain  other  book  entitled 
"A  Northern  Summer,"  a  certain  other  book  entitled  "The  Stranger 
in  Ireland,"  which  said  books  had  been  respectively  published  in  4to, 
yet  that  defendant,  intending  to  bring  upon  plaintiff  great  contempt, 
laughter  and  ridicule,  falsely  and  maliciously  published  a  certain  false, 
scandalous,  malicious,  and  defamatory  libel,  in  the  form  of  a  book,  of 
and  concerning  the  said  books,  of  which  the  said  Sir  John  was  the 
author  as  aforesaid,  which  same  libel  was  entitled  "My  Pocket  Book, 
or  Hints  for  a  Ryghte  Merrie  and  'Conceited  Tour,"  in  quarto,  to  be 

11  For  discussion  of  principles,  see  Chapin  on  Torts.  §§  72,  73. 


168  INJURIES   TO   REPUTATION DEFAMATION 

called,  "The  Stranger  in  Ireland  in  1805"  (thereby  alluding  to  the  said 
book  of  the  said  Sir  John,  thirdly  above  mentioned),  by  a  Knight  Er- 
rant (thereby  alluding  to  the  said  Sir  John),  and  which  same  libel  con- 
tained therein  a  certain  false,  scandalous,  malicious,  and  defamatory 
print,  of  and  concerning  the  said  Sir  John,  and  of  and  concerning  the 
said  books  of  the  said  Sir  John,  1st  and  2ndly  above  mentioned,  there- 
in called  "Frontispiece,"  and  entitled  "The  Knight  (meaning  the  said 
Sir  John)  Leaving  Ireland  with  Regret,"  and  containing  and  represent- 
ing in  the  said  print,  a  certain  false,  scandalous,  and  malicious,  defam- 
atory, and  ridiculous  representation  of  the  said  Sir  John,  in  the  form  of 
a  man  of  ludicrous  and  ridiculous  appearance,  holding  a  pocket  hand- 
kerchief to  his  face  and  appearing  to  be  weeping,  and  also  containing 
therein,  a  certain  false,  malicious,  and  ridiculous  representation  of  a 
man  of  ludicrous  and  ridiculous  appearance,  following  the  said  repre- 
sentation of  the  said  Sir  John,  and  representing  a  man  loaded  with,  and 
bending  under  the  weight  of,  three  large  books,  one  of  them  having 
the  word  "Baltic,"  printed  on  the  back  thereof,  etc.,  and  a  pocket  hand- 
kerchief appearing  to  be  held  in  one  of  the  hands  of  the  said  repre- 
sentation of  a  man,  and  the  corners  thereof  appearing  to  be  held  or 
tied  together,  as  if  containing  something  therein,  with  the  printed  word 
"Wardrobe"  depending  therefrom  (thereby  falsely,  scandalously  and 
maliciously  meaning  and  intending  to  represent,  for  the  purpose  of 
rendering  the  said  Sir  John  ridiculous,  and  exposing  him  to  laughter, 
ridicule  and  contempt,  that  one  copy  of  the  said  1st  mentioned  book  of 
the  said  Sir  John,  and  two  copies  of  the  said  book  of  the  said  Sir  John 
2ndly  above  mentioned,  were  so  heavy  as  to  cause  a  man  to  bend  under 
the  weight  thereof,  and  that  his  the  said  Sir  John's  wardrobe  was  very 
small,  and  capable  of  being  contained  in  a  pocket  handkerchief. 

The  declaration  concluded  by  laying  as  special  damage  that  the  plain- 
tiff had  been  prevented  and  hindered  from  selling  to  Sir  Richard 
Philips,, Knt,  for  £600,  the  copyright  of  a  certain  book  of  which  the 
plaintiff  was  the  author,  containing  an  account  of  a  tour  by  him 
through  part  of  Scotland.  Plea,  Not  guilty. 

Lord  ELLENBOROUGH,  as  the  trial  Nvas  proceeding,  intimated  an 
opinion,  that  if  the  book  published  by  the  defendants  only  ridiculed 
the  plaintiff  as  an  author,  the  action  could  not  be  maintained. 

Garrow  for  the  plaintiff  allowed  that,  when  his  client  came  forward 
as  an  author,  he  subjected  himself  to  the  criticism  of  all  who  might  be 
disposed  to  discuss  the  merits  of  his  works;  but  that  criticism  must 
be  fair  and  liberal;  its  object  ought  to  be  to  enlighten  the  public,  and 
to  guard  them  against  the  supposed  bad  tendency  of  a  particular  pub- 
lication presented  to  them,  not  to  wound  the  feelings  and  to  ruin  the 
prospects  of  an  individual.  If  ridicule  was  employed  it  should  have 
some  bounds.  While  a  liberty  was  granted  of  analyzing  literary  pro- 
ductions, and  pointing  out  their  defects,  still  he  must  be  considered  as 
a  libeler  whose  only  object  was  to  hold  up  an  author  to  the  laughter 
and  contempt  of  mankind.  A  man  with  a  wen  upon  his  neck  perhaps 


DEFENSES  169 

could  not  complain  if  a  surgeon  in  a  scientific  work  should  minutely 
describe  it,  and  consider  its  nature  and  the  means  of  dispersing  it ;  but 
surely  he  might  support  an  action  for  damages  against  any  one  who 
should  publish  a  book  to  make  him  ridiculous  on  account  of  this  in- 
firmity, with  a  caricature  print  as  a  frontispiece.  The  object  of  the 
book  published  by  defendants  clearly  was  by  means  of  immoderate 
ridicule  to  prevent  the  sale  of  plaintiff's  works  and  entirely  destroy 
him  as  an  author.  In  the  late  case  of  Tabart  v.  Tipper,  his  Lordship 
had  held  that  a  publication  by  no  means  so  offensive  or  prejudicial  to 
the  object  of  it,  was  libelous  and  actionable. 

Lord  ELLENBOROUGH.  In  that  case  the  defendant  had  falsely  ac- 
cused the  plaintiff  of  publishing  what  he  had  never  published.  Here 
the  supposed  libel  has  only  attacked  those  works  of  which  Sir  John 
Carr  is  the  avowed  author;  and  one  writer  in  exposing  the  follies 
and  errors  of  another  may  make  use  of  ridicule  however  poignant. 
Ridicule  is  often  the  fittest  weapon  that  can  be  employed  for  such  a 
purpose.  If  the  reputation  or  pecuniary  interests  of  the  person  ridi- 
culed suffer,  it  is  damnum  absque  injuria.  Where  is  the  liberty  of  the 
press  if  an  action  can  be  maintained  on  such  principles?  Perhaps  the 
plaintiff's  "Tour  Through  Scotland"  is  now  unsaleable ;  but  is  he  to  be 
indemnified  by  receiving  a  compensation  in  damages  from  the  person 
who  may  have  opened  the  eyes  of  the  public  to  the  bad  taste  and  in- 
anity of  his  compositions  ?  Who  would  have  bought  the  works  of  Sir 
Robert  Filmer  after  he  had  been  refuted  by  Mr.  Locke?  But  shall 
it  be  said  that  he  might  have  sustained  an  action  for  defamation  against 
that  great  philosopher,  who  was  labouring  to  enlighten  and  ameliorate 
mankind?  We  really  must  not  cramp  observations  upon  authors  and 
their  works.  They  should  be  liable  to  criticism,  to  exposure,  and  even 
to  ridicule,  if  their  compositions  be  ridiculous ;  otherwise  the  first  who 
writes  a  book  on  any  subject  will  maintain  a  monopoly  of  sentiment  and 
opinion  respecting  it.  This  would  tend  to  the  perpetuity  of  error.  Re- 
flection on  personal  character  is  another  thing.  Shew  me  an  attack 
on  the  moral  character  of  this  plaintiff,  or  any  attack  upon  his  char- 
acter unconnected  with  his  authorship,  and  I  shall  be  as  ready  as  any 
judge  who  ever  sate  here  to  protect  him;  but  I  cannot  hear  of  malice 
on  account  of  turning  his  works  into  ridicule. 

The  counsel  for  the  plaintiff  still  complaining  of  the  unfairness  of 
this  publication,  and  particularly  of  the  print  affixed  to  it,  the  trial 
proceeded. 

Lord  ELLENBOROUGH  said :  Every  man  who  publishes  a  book  com- 
mits himself  to  the  judgment  of  the  public,  and  any  one  may  com- 
ment upon  his  performance.  If  the  commentator  does  not  step  aside 
from  the  work,  or  introduce  fiction  for  the  purpose  of  condemnation, 
he  exercises  a  fair  and  legitimate  right.  In  the  present  case,  had  the 
party  writing  the  criticism  followed  the  plaintiff  into  domestic  life 
for  the  purposes  of  slander,  that  would  have  been  libelous;  but  no 
passage  of  this  sort  has  been  produced,  and  even  the  caricature  does 


170  INJURIES  TO   REPUTATION DEFAMATION 

not  affect  the  plaintiff,  except  as  the  author  of  the  book  which  is 
ridiculed.  The  works  of  this  gentleman  may  be,  for  aught  I  know, 
very  valuable;  but  whatever  their  merits,  others  have  a  right  to  pass 
their  judgment  upon  them — to  censure  them  if  they  be  censurable, 
and  to  turn  them  into  ridicule  if  they  be  ridiculous.  The  critic  does 
a  great  service  to  the  public,  who  writes  down  any  vapid  or  useless 
publication,  such  as  ought  never  to  have  appeared.  He  checks  the 
dissemination  of  bad  taste,  and  prevents  people  from  wasting  both 
their  time  and  money  upon  trash.  I  speak  of  fair  and  candid  criti- 
cism; and  this  every  one  has  a  right  to  publish,  although  the  author 
may  suffer  a  loss  from  it.  Such  a  loss  the  law  does  not  consider  as 
an  injury;  because  it  is  a  loss  which  the  party  ought  to  sustain.  It 
is  in  short  the  loss  of  fame  and  profits  to  which  he  was  never  entitled. 
Nothing  can  be  conceived  more  threatening  to  the  liberty  of  the 
press  than  the  species  of  action  before  the  court.  We  ought  to  resist 
an  attempt  against  free  and  liberal  criticism  at  the  threshold. 

The  Chief  Justice  concluded  by  directing  the  jury  that,  if  the  writer 
of  the  publication  complained  of  had  not  traveled  out  of  the  work  he 
criticised  for  the  purpose  of  slander,  the  action  would  not  He ;  but  if 
they  could  discover  in  it  anything  personally  slanderous  against  the 
plaintiff,  unconnected  with  the  works  he  had  given  to  the  public,  in 
that  case  he  had  a  good  cause  of  action,  and  they  would  award  him 
damages  accordingly. 

Verdict  for  the  defendants.12 


2.  PRIVILEGE 
(A)  Absolute  Privilege  1S 


SCOTT  v.  STANSFIELD. 

(Court  of  Exchequer,  1868.     L.  R.  3  Exch.  220.) 

Declaration,  for  that  the  plaintiff  carried  on  the  business  of  an  ac- 
countant and  scrivener,  and  the  defendant  spoke  and  published  of 
and  concerning  him,  in  relation  to  his  said  business,  the  words  fol- 
lowing: "You,"  meaning  the  plaintiff,  "are  a  harpy,  preying  on  the 
vitals  of  the  poor." 

Plea,  that  at  the  time  when  the  alleged  grievance  was  committed, 
the  defendant  was  the  judge  of  a  certain  court  of  record,  being  the 
County  Court  of  Yorkshire,  and  spoke  and  published  the  words  com- 
plained of  when  he  was  sitting  in  the  said  court,  and  acting  in  his 

12  Compare  Buckstaff  v.  Viall,  supra,  p.  164. 

is  For  discussion  of  principles,  see  Chapln  on  Torts,  §  73  (3). 


DEFENSES  171 

Capacity  as  such  judge,  and  was  as  such  judge  hearing  and  trying  a 
cause  in  which  the  now  plaintiff  was  defendant,  the  hearing  and  de- 
termination of  which  was  within  the  jurisdiction  of  the  said  court. 
Replication,  that  the  said  words  so  spoken  and  published  by  the  de- 
fendant were  spoken  falsely  and  maliciously,  and  without  any  reason- 
able, probable  or  justifiable  cause,  and  without  any  foundation  what- 
ever, and  not  bona  fide  in  the  discharge  of  his  duty  as  judge  as  afore- 
said, and  were  wholly  uncalled  for,  immaterial,  irrelevant,  and 
impertinent,  in  reference  to,  or  in  respect  of,  the  matters  before  him, 
and  were  wholly  unwarranted  on  the  said  occasion,  of  all  which  prem- 
ises the  defendant  had  notice  before  and  at  the  time  of  the  committing 
of  the  said  grievance,  and  then  well  knew. 

To  this  replication  the  defendant  demurred,  and  the  plaintiff  joined 
in  the  issue  thus  raised. 

MARTIN,  B.1*  It  seems  to  me  quite  clear  that  words  spoken  under 
the  circumstances  stated  in  these  pleadings  are  not  the  subject  of  an 
action  of  slander.  The  plea  states  that  the  defendant  at  the  time 
when  he  spoke  the  words  complained  of,  was  sitting  as  the  judge  of  a 
court  of  record,  and  spoke  them  while  acting  in  his  capacity  of  judge, 
and  trying  a  cause  within  his  jurisdiction  in  which  the  present  plain- 
tiff was  the  defendant.  If  the  words  spoken  under  such  circumstances 
were  the  subject  of  an  action  of  slander,  the  most  mischievous  conse- 
quences would  ensue;  no  judge  would  then  be  able  freely  to  admin- 
ister justice,  for  if  it  were  alleged,  as  is  the  case  here,  that  he  spoke 
falsely  and  maliciously,  and  not  bona  fide  in  the  discharge  of  his  duty, 
and  that  what  he  said  was  irrelevant  to  the  matter  in  hand,  a  jury 
would  have  to  determine  the  question  whether  what  he  said  in  the 
course  of  a  case  which  he  had  jurisdiction  to  try  was  or  was  not  said 
under  the  circumstances  so  alleged.  What  judge  could  try  a  case  with 
any  degree  of  independence  if  he  was  to  be  afterwards  subject  to  have 
his  conduct  in  the  administration  of  justice  commented  on  to  a  jury, 
and  the  propriety  of  it  determined  by  them?  It  appears  to  me  that 
the  opinion  expressed  by  Chief  Justice  Kent,  in  the  American  case 
cited,16  puts  this  matter  upon  its  proper  foundation,  and  states,  that 
which  is  both  sound  law  and  good  sense  in  reference  to  it.  I  do  not 
think  we  are  really  deciding  anything  new,  for  to  my  mind  the  de- 
cisions of  the  Court  of  Queen's  Bench  have  gone  the  full  length  of 
our  present  decision. 

Judgment  for  the  defendant. 

i*  The  statement  of  the  case  is  abridged  and  the  concurring  opinions  of 
Kelly,  C.  B.,  and  Bramwell  and  Channell,  B.  B.,  are  omitted. 

is  Yates  v.  Lansing,  5  Johns.  (N.  Y.)  282  (1810) ;  Id.,  9  Johns.  395,  6  Am.  Dec. 
290  (1811). 


172  INJURIES  TO  REPUTATION DEFAMATION 

(B)  Qualified  Privilege  18 
WASON  v.  WALTER. 

(Court  of  Queen's  Bench,  1868.     L.  R.  4  Q.  B.  73.) 

A  petition  of  the  plaintiff  was  presented  to  the  House  of  Lords 
charging  a  high  judicial  officer  with  having  made  a  false  statement  to 
his  own  knowledge,  in  order  to  deceive  a  committee  of  the  House  of 
Commons,  and  praying  inquiry  and  the  removal  of  the  officer  if  the 
charge  was  found  true.  A  debate  ensued  on  the  presentation  of  the 
petition,  and  the  charge  was  utterly  refuted.  In  the  course  of  the 
debate,  statements  disparaging  to  the  character  of  the  plaintiff  were 
made  by  the  Lord  Chancellor  and  other  Lords.  The  Times  newspa- 
per published  a  faithful  and  correct  report  of  these  proceedings  in  the 
House  of  Lords,  including  the  debate.  The  plaintiff  sued  the  propri- 
etor of  the  Times  for  libel.  The  defendant  pleaded  "Not  guilty." 

At  the  trial,  the  Lord  Chief  Justice  told  the  jury  that  if  they  were 
satisfied  that  the  matter  charged  as  a  libel  in  the  first  count  was  a  faith- 
ful and  correct  report  of  the  proceedings  in  the  House  of  Lords,  and 
of  the  speeches  delivered  on  the  occasion,  he  directed  them  in  point  of 
law  that  it  was  a  privileged  publication,  and  one  which  was  not  the 
subject  of  a  civil  action,  and  they  should  find  for  the  defendant  on  that 
count. 

There  was  a  verdict  for  the  defendant.  Afterwards  a  rule  was  ob- 
tained for  a  new  trial,  on  the  ground  of  a  misdirection  in  charging  the 
jury  that  the  publication  of  the  libel  was  privileged  if  they  should 
find  it  to  be  a  true  and  faithful  report  of  the  debate  in  the  House  of 
Lords. 

COCKBURN,  C.  J.17  *  *  *  The  main  question  for  our  decision  is 
whether  a  faithful  report  in  a  public  newspaper  of  a  debate  in  either 
house  of  parliament,  containing  matter  disparaging  to  the  character  of 
an  individual,  as  having  been  spoken  in  the  course  of  the  debate,  is  ac- 
tionable at  the  suit  of  the  party  whose  character  has  thus  been  called  in 
question.  We  are  of  opinion  that  it  is  not. 

Important  as  the  question  is,  it  comes  now  for  the  first  time  before  a 
court  of  law  for  decision.  Numerous  as  are  the  instances  in  which  the 
conduct  and  character  of  individuals  have  been  called  in  question  in 
parliament  during  the  many  years  that  parliamentary  debates  have 
been  reported  in  the  public  journals,  this  is  the  first  instance  in  which 
an  action  of  libel,  founded  on  a  report  of  a  parliamentary  debate  has 
cpme  before  a  court  of  law.  There  is,  therefore,  a  total  absence  of  di- 

i«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  73  (3). 
IT  The  statement  of  the  case  and  the  opinion  are  abridged. 


DEFENSES  173 

rect  authority  to  guide  us.  There  are,  indeed,  dicta  of  learned  judges 
having  reference  to  the  point  in  question,  but  they  are  conflicting  and 
inconclusive,  and,  having  been  unnecessary  to  the  decision  of  the  cases 
in  which  they  were  pronounced,  may  be  said  to  be  extrajudicial.  In 
the  case  of  Rex  v.  Wright,  8  T.  R.  293,  Lawrence,  J.,  placed  the  reports 
of  parliamentary  debates  on  the  same  footing  with  respect  to  privilege 
as  is  accorded  to  reports  of  proceedings  in  courts  of  justice,  and  ex- 
pressed an  opinion  that  the  former  were  as  much  entitled  to  protection 
as  the  latter.  But  it  is  to  be  observed  that  in  that  case  the  question  re- 
lated to  the  publication  by  the  defendant  of  a  copy  of  a  report  of  a 
committee  of  the  House  of  Commons,  which  report  the  House  had  or- 
dered to  be  printed,  not  to  the  publication  of  a  debate  unauthorized  by 
the  House.  *  *  * 

Decided  cases  thus  leaving  us  without  authority  on  which  to  pro- 
ceed in  the  present  instance,  we  must  have  recourse  to  principle  in  or- 
der to  arrive  at  a  solution  of  the  question  before  us,  and  fortunately 
we  have  not  far  to  seek  before  we  find  "principles  in  our.  opinion  ap- 
plicable to  the  case,  and  which  will  afford  a  safe  and  .sure  foundation 
for  our  judgment. 

It  is  now  well  established  that  faithful  and  fair  reports  of  the 
proceedings  of  courts  of  justice,  though  the  character  of  individuals 
may  incidentally  suffer,  are  privileged,  and  that  for  the  publication  of 
such  reports  the  publishers  are  neither  criminally  nor  civilly  respon- 
sible. The  immunity  thus  afforded  in  respect  of  the  publication  of 
proceedings  of  courts  of  justice  rests  upon  a  twofold  ground.  *  *  * 

The  other  and  broader  principle  on  which  this  exception  to  the 
general  law  of  libel  is  founded  is  that  the  advantage  to  the  community 
from  publicity  being  given  to  the  proceedings  of  courts  of  justice  is  so 
great  that  the  occasional  inconvenience  to  individuals  arising  from  it 
must  yield  to  the  general  good.  It  is  true  that  with  a  view  to  dis- 
tinguish the  publication  of  proceedings  in  Parliament  from  that  of  pro- 
ceedings of  courts  of  justice  it  has  been  said  that  the  immunity  ac- 
corded to  the  reports  of  the  proceedings  of  courts  of  justice  is  grounded 
on  the  fact  of  the  courts  being  open  to  the  public,  while  the  houses  of 
Parliament  are  not ;  as  also  that  by  the  publication  of  the  proceedings 
of  the  courts  the  people  obtain  a  knowledge  of  the  law  by  which  their 
dealings  and  conduct  are  to  be  regulated.  But  in  our  opinion  the  true 
ground  is  that  given  by  Lawrence,  J.,  in  Rex  v.  Wright,  namely,  that : 
"Though  the  publication  of  such  proceedings  may  be  to  the  disadvan- 
tage of  the  particular  individual  concerned,  yet  it  is  of  vast  importance 
to  the  public  that  the  proceedings  of  courts  of  justice  should  be  uni- 
versally known.  The  general  advantage  to  the  country  in  having  these 
proceedings  made  public,  more  than  counterbalances  the  inconvenience 
of  the  private  persons  whose  conduct  may  be  the  subject  of  such  pro- 
ceedings." In  Davison  v.  Duncan,  7  E.  &  B.  231,  Lord  Campbell  says : 
"A  fair  account  of  what  takes  place  in  a  court  of  justice  is  privileged. 


174  INJURIES   TO    REPUTATION DEFAMATION 

The  reason  is  that  the  balance  of  public  benefit  from  publicity  is  great. 
It  is  of  great  consequence  that  the  public  should  know  what  takes 
place  in  court;  and  the  proceedings  are  under  the  control  of  the 
judges.  The  inconvenience,  therefore,  arising  from  the  chance  of  in- 
jury to  private  character  is  infinitesimally  small  as  compared  to  the 
convenience  of  publicity."  And  Wightman,  J.,  says:  "The  only  foun- 
dation for  the  exception  is  the  superior  benefit  of  the  publicity  of  ju- 
dicial proceedings  which  counterbalances  the  injury  to  individuals, 
though  that  at  times  may  be  great."  *  *  * 

We  entirely  concur  with  Lawrence,  J.,  in  Rex  v.  Wright,  8  T.  R. 
298,  that  the  same  reasons  which  apply  to  the  reports  of  the  proceed- 
ings in  courts  of  justice  apply  also  to  the  proceedings  in  Parliament. 
It  seems  to  us  impossible  to  doubt  that  it  is  of  paramount  public  and 
national  importance  that  the  proceedings  of  the  houses  of  Parliament 
shall  be  communicated  to  the  public,  who  have  the  deepest  interest 
in  knowing  what  passes  within  their  walls,  seeing  that  on  what  is 
there  said  and  done,  the  welfare  of  the  community  depends.  *  *  * 
The  analogy  between  the  two  cases  is  in  every  respect  complete.  If 
the  rule  has  never  been  applied  to  the  reports  of  parliamentary  pro- 
ceedings till  now,  we  must  assume  that  it  is  only  because  the  occasion 
has  never  before  arisen.  If  the  principles  which  are  the  foundation  of 
the  privilege  in  the  one  case  are  applicable  to  the  other,  we  must  not 
hesitate  to  apply  them,  more  especially  when  by  so  doing  we  avoid  the 
glaring  anomaly  and  injustice  to  which  we  have  before  adverted. 
Whatever  disadvantages  attach  to  a  system  of  unwritten  law,  and  of 
these  we  are  fully  sensible,  it  has  at  least  this  advantage,  that  its  elas- 
ticity enables  those  who  administer  it  to  adapt  it  to  the  varying  con- 
ditions of  society,  and  to  the  requirements  and  habits  of  the  age  in 
which  we  live,  so  as  to  avoid  the  inconsistencies  and  injustice  which 
arise  when  the  law  is  no  longer  in  harmony  with  the  wants  and  usages 
and  interests  of  the  generation  to  which  it  is  immediately  applied. 
Our  law  of  libel  has,  in  many  respects,  only  gradually  developed  itself 
into  anything  like  a  satisfactory  and  settled  form.  The  full  liberty  of 
public  writers  to  comment  on  the  conduct  and  motive  of  public  men 
has  only  in  very  recent  times  been  recognized.  Comments  on  govern- 
ment, on  ministers  and  officers  of  state,  on  members  of  both  houses  of 
Parliament,  on  judges  and  other  public  functionaries,  are  now  made 
every  day,  which  half  a  century  ago  would  have  been  the  subject  of 
actions  or  ex  officio  informations,  and  would  have  brought  down 
fine  and  imprisonment  on  publishers  and  authors.  Yet  who  can  doubt 
that  the  public  are  gainers  by  the  change,  and  that,  though  injustice 
may  often  be  done,  and  though  public  men  may  often  have  to  smart 
under  the  keen  sense  of  wrong  inflicted  by  hostile  criticism,  the  nation 
profits  by  public  opinion  being  thus  freely  brought  to  bear  on  the  dis- 
charge of  public  duties?  Again,  the  recognition  of  the  right  to  pub- 
lish the  proceedings  of  courts  of  justice  has  been  of  modern  growth. 


DEFENSES  175 

Till  a  comparatively  recent  time  the  sanction  of  the  judges  was 
thought  necessary  even  for  the  publication  of  the  decisions  of  the 
courts  upon  points  of  law.  *  *  * 

It  is  to  be  observed  that  the  analogy  between  the  case  of  reports 
of  proceedings  of  courts  of  justice  and  those  of  proceedings  in  Parlia- 
ment being  complete,  all  the  limitations  placed  on  the  one  to  prevent 
injustice  to  individuals  will  necessarily  attach  on  the  other ;  a  garbled 
or  partial  report,  or  of  detached  parts  of  proceedings,  published  with 
intent  to  injure  individuals,  will  equally  be  disentitled  to  protection. 
Our  judgment  will  in  no  way  interfere  with  the  decisions  that  the 
publication  of  a  single  speech  for  the  purpose  or  with  the  effect  of 
injuring  an  individual  will  be  unlawful,  as  was  held  in  the  cases  of 
Rex  v.  Lord  Abingdon,  1  Esp.  226,  and  Rex  v.  Creevey,  1  M.  &  S. 
273  *  *  * 

Rule  discharged. 


BROW  v.  HATHAWAY. 
(Supreme  Judicial  Court  of  Massachusetts,  1866.    13  Allen,  239.) 

Tort  for  slander.  The  declaration  contained  two  counts,  and  the 
words  set  forth  as  slanderous  were  as  follows:  "You  (meaning  the 
plaintiff)  entered  our  shop  and  took  fifty-eight  dollars'  worth  of 
goods."  "She  (meaning  the  plaintiff)  took  the  goods  and  has  stolen 
other  things  before.  She  stole  the  goods  we  missed."  "My  wife  ac- 
cuses Josephine  of  entering  her  shop  with  a  key  Monday  night,  and 
taking  fifty-eight  dollars'  worth  of  goods."  "When  we  took  account 
of  stock,  I  accused  her  to  my  wife  of  taking  two  hundred  dollars' 
worth,  either  in  goods  or  money."  "If  I  do  not  (meaning,  If  I  do  not 
lose  any  more  goods),  I  shall  certainly  say  it  was  Josephine ;  and  if  I 
do,  I  shall  lay  it  to  her."  "There  has  been  as  good  girls  as  she  was, 
as  far  as  I  know,  accused  of  stealing,  and  owned  up  to  it."  "There 
have  been  a  great  number  of  innocent  persons  convicted  without 
doubt,  and  you  might  be."  "When  we  took  account  of  stock  I  ac- 
cused her  then  to  my  wife,  of  taking  to  the  amount  of  two  hundred 
dollars,  either  in  goods  or  money,  and  told  her  it  was  time  to  dis- 
charge Josephine,  and  go  into  the  front  part  of  the  shop  herself." 

The  answer  denied  the  speaking  of  the  words,  and  set  forth, 
amongst  other  things,  that  the  defendant's  wife  was  engaged  in  busi- 
ness in  Fall  River,  and  he  was  interested  therein  with  her,  and  the 
plaintiff  had  been  employed  by  her  in  the  business,  and  various  ar- 
ticles and  sums  of  money  had  been  missed  from  the  shop;  and,  if  the 
defendant  spoke  the  words  charged,  they  were  spoken  in  good  faith, 
without  malice,  for  the  sake  of  public  justice,  in  the  prosecution  of  an 
inquiry  into  a  suspected  crime,  in  matters  where  his  interest  was 


176  INJURIES  TO   REPUTATION DEFAMATION 

concerned,  to  enable  him  to  protect  his  interest,  and  in  the  belief  that 
they  were  true. 

At  the  trial  in  the  superior  court,  before  Vose,  J.,  the  plaintiff  in- 
troduced evidence  tending  to  prove  the  speaking  of  the  words  al- 
leged. The  defendant  thereupon  introduced  evidence  tending  to  prove 
that  he  with  his  wife  kept  a  milliner's  shop  in  Fall  River;  that  the 
plaintiff  was  employed  there  in  1864 ;  that  the  other  persons  employed 
there  were  his  wife  and  son;  that  on  taking  an  account  of  stock  in 
July,  1864,  he  discovered  a  deficit  of  some  two  hundred  dollars  which 
he  could  not  account  for ;  that  he  afterwards  missed  more  goods ; 
and  that  he  suspected  the  plaintiff  and  discharged  her  in  December, 
1864,  without  informing  her  of  his  suspicions  or  assigning  any  rea- 
sons except  that  he  thought  he  could  do  better  in  his  front  shop. 
There  was  also  evidence  tending  to  prove  that  on  the  night  of  Janu- 
ary 9,  1865,  some  person  familiar  with  the  premises  entered  the  shop 
and  stole  about  fifty  dollars'  worth  of  goods,  of  a  kind  such  as  the 
plaintiff  had  expressed  a  desire  for;  that  on  the  morning  of  January 
10th  the  defendant  reported  his  loss  at  the  police  office  of  the  city, 
and  a  police  officer,  without  having  any  warrant,  went  with  him  to  the 
house  of  the  plaintiff's  mother,  where  the  plaintiff  lived,  and  were  in- 
vited in  by  the  plaintiff,  and  upon  an  inquiry  by  the  mother  what  they 
wanted  the  defendant  answered  that  some  one  had  entered  his  shop, 
and  he  then  proceeded  to  use  the  words  charged  in  the  declaration  in 
the  presence  of  the  plaintiff  and  her  mother  and  younger  sister  and 
the  police  officer.  Permission  to  search  the  premises  was  granted, 
but  no  goods  were  found.  The  defendant  testified  that  whatever  he 
said  or  did  was  in  good  faith,  without  malice,  and  because  he  believed 
his  suspicions  to  be  true. 

The  defendant  thereupon  contended  that  the  words  constituted  a 
privileged  communication,  for  the  making  of  which  he  was  not  liable. 
But  the  judge  instructed  the  jury  that  if  the  defendant  used  the  words 
and  language  alleged  in  the  declaration  he  would  be  legally  liable 
therefor,  although  they  might  have  been  used  under  the  circumstances 
testified,  and  although  he  might  have  believed  them  to  be  true,  and 
have  had  no  malicious  design  to  defame  the  plaintiff. 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $498.28  damages, 
and  the  defendant  alleged  exceptions. 

WELLS,  J.  The  defendant's  wife  having  lost  goods  from  her  store, 
and  having  grounds  to  suspect  that  the  plaintiff  had  stolen  them,  the 
defendant  applied  to  the  chief  of  police,  and,  at  his  suggestion,  went 
with  a  police  officer  to  the  house  where  the  plaintiff  resided  with  her 
mother,  to  make  inquiry  into  the  matter.  No  search  warrant  was 
taken,  but  a  search  was  made  by  permission  of  the  mother  and  the 
plaintiff.  No  stolen  goods  were  found.  This  proceeding  had  no  au- 
thority of  law,  but,  with  the  assent  of  the  householder,  there  was  no 
impropriety  in  it;  and  there  is  nothing  in  the  case  to  show  that  it  was 


DEFENSES  177 

resorted  to,  or  that  the  attendance  of  the  police  officer  was  procured, 
otherwise  than  in  good  faith  and  to  secure  a  proper  investigation  for 
the  discovery  of  the  stolen  goods. 

The  words  alleged  as  slanderous  were  spoken  by  the  defendant  on 
that  occasion,  in  reply  to  the  inquiry  of  the  mother  as  to  "what  they 
wanted,"  and  in  explanation  of  their  visit.  They  all  related  to  the 
subject-matter  of  the  supposed  theft,  and  the  grounds  which  the  de- 
fendant had  to  suspect  the  plaintiff.  This  statement  furnishes  the  con- 
ditions which  establish  the  legal  position  of  "privilege,"  rebutting  the 
presumption  of  malice  which  the  law  would  otherwise  imply,  and  mak- 
ing it  incumbent  upon  the  plaintiff  to  show  malice  in  fact  in  order  to 
recover. 

The  broad  general  principle  is  carefully  stated  in  the  case  of  Toogood 
v.  Spyring,  4  Tyrwh.  582,  which  is  referred  to  in  nearly  all  the  later  de- 
cisions upon  this  subject,  and  its  doctrines  have  been  quoted  and  ap- 
proved by  this  court  in  Swan  v.  Tappan,  5  Cush.  104,  and  Gassett  v. 
Gilbert,  6  Gray,  94.  A  narrower  statement,  applicable  to  the  facts  of 
the  present  case,  is  made  by  Lord  Ellenborough  in  Delany  v.  Jones,  4 
Esp.  191,  namely:  "If  done  bona  fide,  as  with  a  view  of  investigating 
a  fact,  in  which  the  party  making  it  is  interested,  it  is  not  libellous." 
To  the  same  effect  are  Padmore  v.  Lawrence,  11  Ad.  &  El.  380,  and 
Fowler  v.  Homer,  3  Camp.  294.  In  Blackham  v.  Pugh,  2  C.  B.  620, 
Chief  Justice  Tindal  says :  "A  communication  made  by  a  person  imme- 
diately concerned  in  interest  in  the  subject  matter  to  which  it  relates, 
for  the  purpose  of  protecting  his  own  interest,  in  the  full  belief  that  the 
communication  is  true  and  without  any  malicious  motive,  is  held  to 
be  excused  from  responsibility  in  an  action  for  a  libel." 

This  "privilege"  is  not  defeated  by  the  mere  fact  that  the  statements 
were  made  in  the  presence  of  others  than  the  parties  immediately  in- 
terested nor  that  they  were  intemperate  or  excessive  from  overexcite- 
ment.  Toogood  v.  Spyring,  cited  above;  Dunman  v.  Bigg,  1  Camp. 
269. 

Whether  the  subject-matter  to  which  the  communications  relate  the 
interest  in  it  of  the  party  making  them,  or  his  relations  to  it,  are  such 
as  to  furnish  the  excuse,  is  a  question  to  be  determined  by  the  court,  in 
in  the  first  instance,  assuming  that  they  were  made  in  good  faith,  in 
the  belief  that  they  were  true,  and  with  no  motive  of  malice. 

If  unnecessary  publicity  be  given  to  the  statements,  or  if  they  go 
beyond  what  is  reasonable  in  imputing  crime,  these  circumstances  may 
tend  to  show  malice  in  fact;  as  well  as  evidence  that  the  defendant 
knew  them  to  be  false,  or  had  no  sufficient  reason  to  believe  them  true, 
or  that  he  improperly  sought  or  used  the  occasion  to  utter  the  defama- 
tory words.  But,  however  strong  the  evidence  from  these  sources  may 
be,  and  however  irresistible  the  conclusion  of  malice  to  be  drawn  there- 
from, it  is  a  conclusion  of  fact,  and  is  to  be  drawn  by  the  jury,  and 
CHAP.CAS.TOBTS — 12 


178  INJURIES  TO  REPUTATION DEFAMATION 

not  by  the  court.  The  judge  who  tried  this  cause  instructed  the  jury 
that,  if  the  defendant  used  the  words  alleged,  he  was  liable,  "although 
he  may  have  believed  them  to  be  true  and  may  have  had  no  malicious 
design  to  defame  the  plaintiff."  This  ruling,  as  it  seems,  must  have 
been  based  upon  the  ground,  either  that  the  occasion  was  not  one  which 
furnished  the  excuse  of  "privilege,"  or  that  the  defendant  had,  by  some 
abuse  of  the  privilege,  lost  the  benefit  of  its  protection.  If  upon  the 
former  ground,  we  think  it  was  wrong  as  matter  of  law,  both  upon 
the  authorities  and  upon  principle.  If  upon  the  latter,  it  was  a  ques- 
tion not  for  the  court,  but  for  the  jury. 

This  case  must  be  distinguished  from  those  in  which  the  party  plead- 
ing the  excuse  of  "privilege"  is  guilty  of  making  use  of  the  occasion  to 
utter  charges  of  a  character  foreign  to  its  legitimate  purpose.  As,  for 
instance,  if  this  defendant  had,  in  addition  to  his  statements  in  re- 
lation to  the  supposed  theft,  gone  on  to  criminate  the  plaintiff  gen- 
erally, or  to  accuse  her  of  unchastity,  it  would  then  have  been  the 
duty  of  the  court,  in  an  action  for  uttering  such  charges,  to  instruct  the 
jury  that  as  to  such  words,  not  appropriate  to  the  legitimate  objects  of 
the  occasion,  it  furnished  the  defendant  no  excuse  whatever.  But  in 
this  case  the  language  all  related  to  the  subject  of  the  theft  which  they 
were  investigating,  and  it  should  have  been  left  to  the  jury  to  determine, 
upon  all  the  circumstances  of  the  case,  whether  the  defendant  was 
guilty  of  actual  malice. 

Exceptions  sustained. 


TRESPASS  .  179 

TRESPASS 
I.  To  Land l 


DOUGHERTY  v.  STEPP. 

(Supreme  Court  of  North  Carolina,  1835.     18  N.  O.  371.) 

This  was  an  action  of  trespass  quare  clausum  fregit,  tried  at  Bun- 
combe on  the  last  circuit,  before  his  Honor  Judge  Martin.  The  only 
proof  introduced  by  the  plaintiff  to  establish  an  act  of  trespass  was  that 
the  defendant  had  entered  on  the  unenclosed  land  of  the  plaintiff,  witU 
a  surveyor  and  chain  carriers,  and  actually  surveyed  a  part  of  it,  claim- 
ing it  as  his  own,  but  without  marking  trees  ,or  cutting  bushes.  This 
his  honor  held  not  to  be  a  trespass,  and  the  jury,  under  his  instruc- 
tions, found  a  verdict  for  the  defendant,  and  the  plaintiff  appealed. 

RUFFIN,  C.  J.  In  the  opinion  of  the  court,  there  is  error  in  the  in- 
structions given  to  the  jury.  The  amount  of  damages  may  depend  on 
the  acts  done  on  the  land,  and  the  extent  of  injury  to  it  therefrom. 
But  it  is  an  elementary  principle  that  every  unauthorised,  and  therefore 
unlawful  entry,  into  the  close  of  another,  is  a  trespass.  From  every 
such  entry  against  the  will  of  the  possessor,  the  law  infers  some  dam- 
age ;  if  nothing  more,  the  treading  down  the  grass  or  the  herbage,  or  as 
here,  the  shrubbery.  Had  the  locus  in  quo  been  under  cultivation  or  en- 
closed there  would  have  been  no  doubt  of  the  plaintiff's  right  to  re- 
cover. Now  our  courts  have  for  a  long  time  past  held  that,  if  there 
be  no  adverse  possession,  the  title  makes  the  land  the  owner's  close. 
Making  the  survey  and  marking  trees,  or  making  it  without  marking, 
differ  only  in  the  degree,  and  not  in  the  nature  of  the  injury.  It  is  the 
entry  that  constitutes  the  trespass.  There  is  no  statute,  nor  rule  of 
reason,  that  will  make  a  willful  entry  into  the  land  of  another,  upon  an 
unfounded  claim  of  right,  innocent,  which  one,  who  set  up  no  title  to 
the  land,  could  not  justify  or  excuse.  On  the  contrary,  the  pretended 
ownership  aggravates  the  wrong.  Let  the  judgment  be  reversed,  and 
a  new  trial  granted. 

PER  CURIAM.    Judgment  reversed. 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  f§  75.  76. 


180  TRESPASS 


HANNABALSON  v.  SESSIONS. 

(Supreme  Court  of  Iowa,  1902.    116  Iowa,  457,  90  N.  W.  93, 
,93  Am.  St.  Rep.  250.) 

Action  at  law  to  recover  damages  for  an  alleged  assault  and  battery. 
It  appeared  that  in  a  war  of  words  the  defendant  had  pushed  the 
plaintiff's  arm  back  from  the  defendant's  side  of  a  partition  fence. 
There  was  a  verdict  and  judgment  for  defendant,  and  plaintiff  ap- 
peals. 

WEAVER,  J.2  *  *  *  It  is  also  said  that  the  court  erred  in  in- 
structing the  jury  that,  if  plaintiff  leaned  over  the  partition  fence  and 
attempted  to  interfere  with  the  ladder,  defendant  had  the  right  to  use 
such  force  upon  her  as  was  reasonably  necessary  to  cause  her  to  de- 
sist, and  to  expel  her  from  his  premises.  It  is  claimed  that  this  instruc- 
tion is  wrong.  *  *  15  The  general  doctrine  announced  in  the  in- 
struction is,  in  our  judgment,  correct.  The  mere  fact  that  the  plaintiff 
did  not  step  across  the  boundary  line  does  not  make  her  any  less  a 
trespasser  if  she  reached  her  arm  across  the  line,  as  she  admits  she  did. 
It  is  one  of  the  oldest  rules  of  property  known  to  the  law  that  the  title 
of  the  owner  of  the  soil  extends,  not  only  downward  to  the  center  of 
the  earth,  but  upward  usque  ad  ccelum,  although  it  is,  perhaps,  doubtful 
whether  owners  as  quarrelsome  as  the  parties  in  this  case  will  ever  en- 
joy the  usufruct  of  their  property  in  the  latter  direction.  The  maxim, 
"Ubi  pars  est  ibi  est  totum" — that  where  the  greater  part  is,  there  is  the 
whole — does  not  apply  to  the  person  of  the  trespasser,  and  the  court 
and  jury  could  therefore  not  be  expected  to  enter  into  any  inquiry  as  to 
the  side  of  the  boundary  line  upon  which  plaintiff  preponderated,  as 
she  reached  over  the  fence  top.  It  was  enough  that  she  thrust  her  hand 
or  arm  across  the  boundary  to  technically  authorize  the  defendant  to 
demand  that  she  cease  the  intrusion,  and  to  justify  him  in  using  reason- 
able and  necessary  force  required  for  the  expulsion  of  so  much  of  her 
person  as  he  found  upon  his  side  of  the  line,  being  careful  to  keep  with- 
in the  limits  of  the  rule,  "Molliter  manus  imposuit,"  so  far  as  was  con- 
sistent with  his  own  safety.  Under  the  instructions  of  the  court,  the 
jury  must  have  found  that  defendant  kept  within  the  scope  of  his  le- 
gal rights  in  this  respect,  and  that  the  alleged  assault  was  not  established 
by  the  evidence. 

The  judgment  of  the  district  court  is  affirmed. 

2  The  statement  of  the  case  is  abridged  and  part  of  the  opinion  omitted. 


TO   CHATTELS  181 


II.  To  Chattels* 


WINTRINGHAM  v.  LAFOY. 

(Supreme  Court  of  New  York,  1827.    7  Cow.  735.) 

On  error  from  the  C.  P.  of  the  City  and  County  of  N.  Y.  The 
action  in  the  court  below  was  trespass  de  bonis  asportatis  by  Lafoy 
against  Wintringham.  It  appeared  on  the  trial  that  Wintringham 
was  a  constable,  who  held  a  fi.  fa.  issued  by  the  Marine  Court  of  the 
city,  against  the  goods  and  chattels  of  one  Gallis,  and  that  Jan.  19, 
1826,  he  levied  on  the  articles  in  question,  consisting  of  jewelry  in 
the  store  occupied  by  Gallis,  who  was  present  at  the  levy.  That  Gal- 
lis informed  the  defendant  below  that  the  goods  had  been  assigned 
by  him  (Gallis),  and  the  defendant  below  said  he  was  indemnified. 
That  Gallis  placed  the  articles  on  the  glass  case,  so  that  the  defend- 
ant below  might  look  at  them  to  ascertain  their  value.  That  the  de- 
fendant below  made  an  inventory,  and  said  he  would  remove  the  goods, 
unless  security  was  given  that  they  would  be  forthcoming,  to  answer 
the  execution.  That  security  was,  therefore,  given,  and  the  articles 
were  left  in  the  store.  It  further  appeared  that  Dec.  2l,  1825,  Gallis 
had  executed  an  assignment  of  all  his  property  to  the  plaintiff  below, 
Lafoy,  for  the  purpose,  first,  of  paying  law  expenses,  then  the  debt  of 
the  plaintiff  below,  then  certain  other  creditors  named,  and  then  the  rest 
of  his  creditors.  *  *  * 

SAVAGE,  C.  J.4  It  is  not  denied  that  a  debtor  in  failing  circum- 
stances may  prefer  one  of  his  creditors,  or  one  set  of  creditors  to  an- 
other; nor  is  it  pretended  that  any  fraud  in  fact  was  proved  in  the 
court  below.  Indeed  this  was  negatived  by  the  proof  and  verdict  of 
the  jury.  *  *  * 

Was  there  any  evidence  of  a  trespass?  If  a  sheriff  takes  the 
goods  of  a  stranger,  he  is  liable  in  this  action.  It  is  contended,  how- 
ever, that  admitting  the  goods  to  belong  to  the  plaintiff,  the  defendant 
did  no  tortious  act.  Every  unlawful  interference,  by  one  person  with 
the  property  or  person  of  another,  is  a  trespass.  The  defendant  in  the 
court  below  undertook  to  control  the  property  levied  on.  He  took  it 
into  his  possession,  though  there  was  no  manual  seizing  of  it.  He  was 
about  to  take  it  away,  and  could  have  done  so,  but  for  the  security  giv- 
en him  that  it  should  be  forthcoming  upon  the  execution.  He  exercised 
dominion  over  it.  This  was  enough  to  constitute  him  a  trespasser,  he 
having  no  authority.  Trover  lies  against  a  defendant  who  undertakes 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  75,  76. 

*  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


182  TRESPASS 

to  control  property  in  defiance  or  exclusion  of  the  owner.     Reynolds 
v.  Shuler,  5  Cow.  325,  326,  and  cases  cited.    The  same  doctrine  is  ap- 
plicable in  trespass,  as  in  trover,  where  the  conversion  is  the  tortious 
intermeddling  with  the  goods  of  another. 
The  judgment  must  be  affirmed. 


III.  Ab  Initio  « 


THE  SIX  CARPENTERS'  CASE. 

(Court  of  King's  Bench,  1610.     8  Coke  Rep.  146  a,  77  Reprint,  695.) 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  car- 
penter, and  five  other  carpenters,  for  breaking  his  house,  and  for  an 
assault  and  battery,  1  Sept.  7  Jac.  in  Eondon,  in  the  parish  of  St. 
Giles  extra  Cripplegate,  in  the  ward  of  Cripplegate,  etc.,  and  upon  the 
new  assignment,  the  plaintiff  assigned  the  trespass  in  a  house  called  the 
Queen's  Head.  The  defendants  to  all  the  trespass  praeter  fractionem 
domus  pleaded  not  guilty;  and  as  to  the  breaking  of  the  house  said, 
that  the  house  praed'  tempore  quo,  etc.,  et  diu  antea  et  postea,  was  a 
common  wine  tavern,  of  the  said  John  Vaux,  with  a  common  sign  at 
the  door  of  the  said  house  fixed,  etc.,  by  force  whereof  the  defendants, 
praed'  tempore  quo,  etc.,  viz.  hora  quarta  post  meridiem  into  the  said 
house,  the  door  thereof  being  open,  did  enter,  and  did  there  buy  and 
drink  a  quart  of  wine,  and  there  paid  for  the  same,  etc.  The  plaintiff, 
by  way  of  replication,  did  confess,  that  the  said  house  was  a  common 
tavern,  and  that  they  entered  into  it,  and  bought  and  drank  a  quart  of 
wine,  and  paid  for  it :  but  further  said,  that  one  John  Ridding,  servant 
of  the  said  John  Vaux,  at  the  request  of  the  said  defendants,  did  there 
then  deliver  them  another  quart  of  wine,  and  a  pennyworth  of  bread, 
amounting  to  8d.  and  then  they  there  did  drink  the  said  wine,  and  eat 
the  bread,  and  upon  request  did  refuse  to  pay  for  the  same:  upon 
which  the  defendants  did  demur  in  law :  and  the  only  point  in  this 
case  was,  if  the  denying  to  pay  for  the  wine,  or  the  nonpayment,  which 
is  all  one  (for  every  nonpayment  upon  request,  is  a  denying  in  law) 
makes  the  entry  into  the  tavern  tortious. 

And  first  it  was  resolved  6  when  an  entry,  authority,  or  license,  is  giv- 
en to  any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a  trespasser 
ab  initio ;  but  where  an  entry,  authority,  or  license  is  given  by  the  party, 
and  he  abuses  it,  there  he  must  be  punished  for  his  abuse,  but  shall 
not  be  a  trespasser  ab  initio.  And  the  reason  of  this  difference  is  that 

o  For  discussion  of  principles,  see  Chapin  on  Torts,  §  77. 
•  A  portion  of  the  opinion  is  omitted. 


AB  INITIO  183 

in  the  case  of  a  general  authority  or  license  of  law,  the  law  adjudges  by 
the  subsequent  act,  quo  animo,  or  to  what  intent,  he  entered;  for 
acta  exteriora  indicant  interiora  secreta.  Vide  11  H.  4,  75  b.  But 
when  the  party  gives  an  authority  or  license  himself  to  do  anything,  he 
cannot,  for  any  subsequent  cause,  punish  that  which  is  done  by  his  own 
authority  or  license,  and  therefore  the  law  gives  authority  to  enter 
into  a  common  inn,  or  tavern,  so  to  the  lord  to  distrain ;  to  the  owner 
of  the  ground  to  distrain  damage- feasant;  to  him  in  reversion  to  see  if 
waste  be  done ;  to  the  commoner  to  enter  upon  the  land  to  see  his  eat- 
tle,  and  such  like.  Vide  12  E.  4,  8  b;  21  E.  4,  19  b;  5  H.  7,  11  a;  9 
H.  6,  29  b;  11  H.  4,  75  b;  3  H.  7,  15  b;  28  H.  6,  5  b.  But  if  he  who 
enters  into  the  inn  or  tavern  doth  a  trespass,  as  if  he  carries  away  any- 
thing; or  if  the  lord  who  distrains  for  rent,  or  the  owner  for  damage- 
f easant,  works  or  kills  the  distress ;  or  if  he  who  enters  to  see  waste 
breaks  the  house,  or  stays  there  all  night;  or  if  the  commoner  cuts 
down  a  tree,  in  these  and  the  like  cases,  the  law  adjudges  that  he  en- 
tered for  that  purpose ;  and  because  the  act  which  demonstrates  it  is 
a  trespass,  he  shall  be  trespasser  ab  initio  as  it  appears  in  the  said  books. 
So  if  a  purveyor  takes  my  cattle  by  force  of  a  commission,  for  the 
King's  house,  it  is  lawful ;  but  if  he  sells  them  in  the  market,  now  the 
first  taking  is  wrongful ;  and  therewith  agrees  18  H.  6,  19  b.  Et  sic  de 
similibus. 

It  was  resolved  per  totam  curiam  that  not  doing  cannot  make  the 
party  who  has  authority  or  license  by  the  law  a  trespasser  ab  initio, 
because  not  doing  is  no  trespass,  and,  therefore,  if  the  lessor  distrains 
for  his  rent,  and  thereupon  the  lessee  tenders  him  the  rent  and  ar- 
rears, etc.,  and  requires  his  beasts  again,  and  he  will  not  deliver  them, 
this  not  doing  cannot  make  him  a  trespasser  ab  initio ;  and  therewith 
agrees  33  H.  6,  47  a.  So  if  a  man  takes  cattle  damage-feasant,  and 
the  other  offers  sufficient  amends  and  he  refuses  to  redeliver  them,  now, 
if  he  sues  a  replevin,  he  shall  recover  damages  only  for  the  detaining 
of  them,  and  not  for  the  taking,  for  that  was  lawful;  and  therewith 
agrees  F.  N.  B.  69,  g.  temp.  E.  1 ;  Replevin  27 ;  27  E.  3,  88 ;  45  E. 
3,  9.  So  in  the  case  at  bar,  for  not  paying  for  the  wine,  the  defend- 
ants shall  not  be  trespassers,  for  the  denying  to  pay  for  it  is  no  tres- 
pass, and  therefore  they  cannot  be  trespassers  ab  initio ;  and  therewith 
agrees  directly  in  the  point  12  Edw.  4,  9  b.  For  there  Pigot,  Serjeant, 
puts  this  very  case,  if  one  comes  into  a  tavern  to  drink,  and  when 
he  has  drunk  he  goes  away,  and  will  not  pay  the  taverner,  the  taverner 
shall  have  an  action  of  trespass  against  him  for  his  entry.  To  which 
Brian,  Chief  Justice,  said,  the  said  case  which  Pigot  has  put  is  not  law, 
for  it  is  no  trespass  but  the  taverner  shall  have  an  action  for 
debt.  *  *  * 


184  CONVERSION 

CONVERSION 

/ 

L  Denial  of  Right  Essential1 

SHEA  v.  INHABITANTS  OF  MILFORD. 
(Supreme  Judicial  Court  of  Massachusetts,  1888.    145  Mass.  525,  14  N.  E.  769.) 

Tort  for  the  conversion  of  personal  property  by  plaintiff,  Shea, 
against  the  inhabitants  of  the  town  of  Milford.  Trial  in  the  superior 
court,  where  the  jury  returned  a  verdict  for  the  defendant,  and  the 
plaintiff  alleged  exceptions. 

ALLEN,  J.  The  property  of  the  plaintiff  alleged  to  have  been  con- 
verted by  the  defendants  was  on  land  belonging  to  and  occupied  by 
the  defendant  town.  The  town  requested  the  plaintiff  to  remove  the 
property  to  another  place  on  the  same  parcel  of  land,  and  the  plaintiff 
refused  to  do  so,  whereupon  the  defendants  removed  it  to  the  place 
assigned  by  the  town.  The  instruction  that  if  the  plaintiff  unreasona- 
bly neglected  to  remove  the  property,  and  the  defendants  removed  it 
to  another  part  of  the  lot,  doing  no  unnecessary  damage,  the  plaintiff 
could  not  recover,  was  sufficiently  favorable  to  the  plaintiff,  even  if 
he  occupied  under  a  license  which  had  not  been  revoked.  The  evi- 
dence negatived  a  conversion  of  the  property  by  the  defendants,  and 
showed  that  they  claimed  no  title  to  it,  assumed  no  dominion  over  it, 
and  did  nothing  in  derogation  of  the  plaintiff's  title  to  it,  and  that  all 
that  was  claimed  by  the  defendants  was  the  right  to  remove  the  goods 
from  one  place  to  another  on  their  own  land.  All  that  was  done  was 
in  assertion  of  their  right  in  the  land,  and  in  recognition  of  the  plain- 
tiff's right  of  property  in  the  chattels.  If  the  plaintiff  had  the  right 
to  occupy  the  land  which  he  claimed,  the  act  of  the  defendants  was 
wrongful,  and  they  would  be  liable  to  the  plaintiff  for  damages  for 
breach  of  contract,  or  for  the  trespass,  but  not  for  the  value  of  prop- 
erty converted  to  their  own  use.  Farnsworth  v.  Lowery,  134  Mass. 
512;  Fouldes  v.  Willoughby,  8  Mees.  &  W.  540;  Heald  v.  Carey,  11 
C.  B.  977.  It  is  immaterial  whether  the  plaintiff  had  an  unrevoked 
license  to  occupy  the  land,  and  we  express  no  opinion  upon  that  ques- 
tion. Exceptions  overruled. 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  81-83. 


NONFEASANCE   IS  INSUFFICIENT  185 


II.  Nonfeasance  is  Insufficient' 

DAVIS  v.  HURT. 
(Supreme  Court  of  Alabama,  1897.    114  Ala.  146,  21  South.  468.) 

Trover  by  Peter  T.  Hurt  against  W.  F.  Davis  &  Son  to  recover  dam- 
ages for  the  alleged  conversion  by  the  defendants  of  three  bales  of 
cotton.  Issue  was  joined  upon  the  plea  of  the  general  issue.  From  a 
judgment  for  plaintiff,  defendants  appeal.  Reversed. 

On  the  trial  of  the  cause,  as  is  shown  by  the  bill  of  exceptions,  the 
testimony  for  the  plaintiff  tended  to  show  that  he  had  purchased  from 
certain  parties  warehouse  certificates  for  three  bales  of  cotton,  which 
the  holders  of  said  certificates  had  stored  with  the  defendants;  that 
these  certificates  belonged  to  the  plaintiff;  and  that  subsequently,  u'pon 
his  making  demand  upon  the  defendants  for  the  cotton  which  said 
certificates  represented,  the  defendants  were  unable  to  find  the  cotton 
in  their  warehouse,  and  that,  after  diligent  search  by  the  plaintiff's 
agent  and  the  defendants,  the  cotton  was  never  found.  It  was  further 
shown  that  the  plaintiff  had  instructed  the  defendants  to  ship  to  his 
cotton  merchant  45  bales  of  cotton,  in  which  were  included  the  3  bales 
involved  in  this  suit,  and  that  only  42  bales  of  cotton  were  received  by 
his  cotton  merchants ;  the  3  bales  which  were  not  received  being  those 
involved  in  this  suit.  The  testimony  for  the  defendants  tended  to 
show  that  the  defendants  made  a  search  for  the  cotton,  with  the  agent 
of  the  plaintiff,  and  failed  to  find  it,  and  that  they  afterwards  made  a 
diligent  search  in  their  warehouse  for  said  cotton  without  finding  it, 
and  that  the  cotton  was  never  shipped  by  the  defendants,  after  a  de- 
mand was  made  by  the  plaintiff  for  said  cotton,  nor  was  it  delivered 
to  any  one  else;  and  that  the  cotton  was  not  in  the  possession  of  the 
defendants  at  the  time  the  suit  was  brought.  Upon  the  introduction 
of  all  the  evidence,  the  court,  of  its  own  motion,  instructed  the  jury 
as  follows :  "If  the  jury  believe  from  the  evidence  that  the  cotton  in 
controversy  was  stored  with  the  defendants  as  warehousemen  for  a 
reward,  and  the  said  defendants,  upon  demand,  failed  to  deliver  said 
cotton,  or  to  account  for  its  absence,  then  the  defendants  are  liable  in 
this  action  to  the  plaintiff  for  the  value  of  the  cotton  and  interest 
thereon  from  the  time  of  such  demand."  To  the  giving  of  this  part 
of  the  court's  general  charge  the  defendants  duly  excepted,  and  also 
separately  excepted  to  the  court's  giving,  at  the  request  of  the  plain- 
tiff, the  following  written  charges:  (2)  "That  if  the  jury  believe  from 
all  the  evidence  that,  through  negligence,  defendants  delivered  the  cot- 
ton to  other  parties,  or  shipped  or  disposed  of  it  in  violation  of  the  or- 

2  For  discussion  of  principles,  see  Chapin  on  Torts,  §  82. 


186  CONVERSION 

ders  of  plaintiff,  then  they  must  find  for  the  plaintiff,  if  plaintiff  has 
never  recovered  cotton,  or  been  paid  for  it."  (3)  "That  there  must  be 
some  evidence  before  the  jury  that  the  cotton  was  stolen,  before  the 
jury  can  consider  that  theory  as  a  part  of  this  case."  (4)  "In  order  to 
sustain  trover,  it  is  not  necessary  to  show  that  the  wrongful  disposi-, 
tion,  appropriation,  wasting,  or  destruction  was  criminal.  It  is  only 
necessary  to  show  that  the  disposition,  etc.,  was  made  in  violation  of 
the  property  or  possession  of  plaintiff  by  the  defendants."  The  de- 
fendants requested  the  court  to  give  to  the  jury  the  following  written 
charges,  and  separately  excepted  to  the  court's  refusal  to  give  each  of 
them  as  asked:  (2)  "Before  the  jury  can  find  for  the  plaintiff  in  this 
case,  they  must  be  satisfied  from  the  evidence  that  the  defendants  ex- 
ercised some  unlawful  assumption  or  dorninion  over  the  cotton  in  con- 
troversy in  defiance  or  exclusion  of  the  plaintiff's  right;  or  else  that 
the  defendants  withheld  the  possession  of  said  cotton  from  the  plain- 
tiff, claiming  the  title  to  said  cotton  in  themselves,  or  inconsistent  with 
the  right  of  the  plaintiff."  (3)  "Before  the  jury  can  find  for  the  plain- 
tiff in  this  case,  they  must  be  satisfied  from  the  evidence  that  the  de- 
fendants have  either  appropriated  the  cotton  in  controversy  to  their 
own  use  and  enjoyment,  or  have  destroyed  it,  or  are  exercising  control 
of  it  in  exclusion  and  defiance  of  the  plaintiff's  title,  or  are  withhold- 
ing the  possession  thereof  from  the  plaintiff  under  a  claim  of  title  in 
themselves  inconsistent  with  the  plaintiff's  claim."  (4)  "The  burden 
of  proof  in  the  case  is  on  the  plaintiff  to  satisfy  the  jury  from  the  evi- 
dence that  the  defendants  have  been  guilty  of  the  conversion  of  the 
three  bales  of  cotton  in  controversy,  and  a  mere  failure  to  deliver  the 
cotton  on  demand  is  not  sufficient  evidence  of  a  conversion  without 
more."  (5)  "Mere  nondelivery  by  a  warehouseman  of  cotton  stored 
with  him,  on  demand,  will  not  support  this  action.  There  must  be  a 
conversion  of  the  cotton  by  the  warehouseman."  The  defendants  as- 
sign as  error  the  rulings  of  the  court  upon  the  charges. 

BRICKELL,  C.  J.  Warehousemen  are  of  the  class  of  bailees  bound 
to  ordinary  diligence,  and,  of  consequence,  liable  only  for  losses  oc- 
'curring  from  the  want  of  ordinary  care.  When,  however,  upon  de- 
mand made,  the  bailee  fails  to  deliver  goods  intrusted  to  his  care,  or 
does  not  account  for  the  failure  to  make  delivery,  prima  facie  negli- 
gence will  be  imputed  to  him ;  and  the  burden  of  proving  loss  without 
the  want  of  ordinary  care  devolves  upon  him.  Seals  v.  Edmondson, 
71  Ala.  509;  Prince  v.  State  Fair,  106  Ala.  340,  17  South.  449,  28  L. 
R.  A.  716;  Claflin  v.  Meyer,  75  N.  Y.  260;  Id.,  31  Am.  Rep.  467;  Boies 
v.  Railroad  Co.,  37  Conn.  272;  Id.,  9  Am.  Rep.  347.  The  rule  is 
founded  in  necessity,  and  upon  the  presumption  that  a  party  who, 
from  his  situation,  has  peculiar,  if  not  exclusive,  knowledge  of  facts, 
if  they  exist,  is  best  able  to  prove  them.  If  the  bailee  to  whose  pos- 
session, control,  and  care  goods  are  intrusted  will  not  account  for  the 
failure  or  refusal  to  deliver  them  on  demand  of  the  bailor,  the  pre- 
sumption is  not  violent  that  he  has  been  wanting  in  diligence,  or  that 


NONFEASANCE   IS   INSUFFICIENT  187 

he  may  have  wrongfully  converted,  or  may  wrongfully  detain  them. 
Or,  if  there  be  injury  to  or  loss  of  them  during  the  bailment,  it  is  but 
just  that  he  be  required  to  show  the  circumstances,  acquitting  himself 
of  the  want  of  diligence  it  was  his  duty  to  bestow.  When  the  bailee 
fails  to  return  the  goods  on  demand,  the  principal  has  an  election  of 
remedies.  He  may  sue  in  assumpsit  for  a  breach  of  the  contract,  or 
in  case  for  negligence,  or,  if  there  has  been  a  conversion  of  the  goods, 
in  trover  for  the  conversion.  Story,  Bailm.  §§  191-269;  Bank  v. 
Wheeler,  48  N.  Y.  492;  Id.,  8  Am.  Rep.  564;  Magnin  v.  Dinsmore,  70 
N.  Y.  410;  Id.,  26  Am.  Rep.  608.  The  gist  of  the  action  of  trover  is 
the  conversion.  The  right  of  property  may  reside  in  the  plaintiff,  en- 
titling him  to  pursue  other  remedies,  but  trover  cannot  be  pursued 
without  evidence  of  a  conversion  of  the  goods.  Glaze  v.  McMillion, 
7  Port.  279;  Conner  v.  Allen,  33  Ala.  515;  Boiling  v.  Kirby,  90  Ala. 
215,  7  South.  914,  24  Am.  St.  Rep.  789.  In  Conner  v.  Allen,  supra,  it 
was  said  by  Rice,  C.  J. :  "Trover  is  one  of  the  actions  the  bounda- 
ries of  which  are  distinctly  marked  and  carefully  preserved  by  the 
Code.  A  conversion  is  now,  as  it  has  ever  been,  the  gist  of  that  ac- 
tion; and,  without  proof  of  it,  the  plaintiff  cannot  recover,  whatever 
else  he  may  prove,  or  whatever  may  be  his  right  of  recovery  in  an- 
other form  of  action."  And  he  adopts  the  definition  or  description 
of  a  conversion  given  by  Mr.  Greenleaf :  "A  conversion,  in  the  sense 
of  the  law  of  trover,  consists  either  in  the  appropriation  of  the  thing 
to  the  party's  own  use  and  beneficial  enjoyment,  or  in  its  destruction, 
or  in  exercising  dominion  over  it  in  exclusion  or  defiance  of  the  plain- 
tiff's right,  or  in  withholding  the  possession  from  the  plaintiff  under  a 
claim  of  title  inconsistent  with  his  own."  2  Greenl.  Ev.  §  642.  In 
Glaze  v.  McMillion,  supra,  it  was  said:  "It  is  believed  that  all  con- 
versions may  be  divided  into  four  distinct  classes:  (1)  By  a  wrong- 
ful taking,  (2)  by  an  illegal  assumption  of  ownership,  (3)  by  an  illegal 
user  or  misuser,  (4)  by  a  wrongful  detention."  -  In  Boiling  v.  Kirby, 
supra,  there  was  a  very  full  examination  of  the  authorities,  and  dis- 
cussion of  the  essential  elements  or  facts  which  must  concur  to  consti- 
tute conversion  in  the  sense  of  the  law  of  trover,  by  McClellan,  J.,  and 
the  result  declared  was  that  ''conversion  upon  which  recovery  in  tro- 
ver may  be  had  must  be  a  positive,  tortious  act.  Nonfeasance,  or  neg- 
lect of  legal  duty,  mere  failure  to  perform  an  act  obligatory  by  con- 
tract, or  by  which  property  is  lost  to  the  owner,  will  not  support  the 
action."  The  case  is  republished,  with  elaborate  and  instructive  anno- 
tation by  Mr.  Freeman,  24  Am.  St.  Rep.  789-819.  In  Railroad  Co.  v. 
Kidd,  35  Ala.  209,  it  was  held  that  "trover  will  not  lie  for  a  bare  non- 
delivery of  goods  by  a  warehouseman,  unless  they  are  in  his  posses- 
sion, and  he  refuses  to  deliver  them  on  demand."  In  Abraham  v. 
Nunn,  42  Ala.  51,  it  was  held  that  trover  would  not  lie  against  a  ware- 
houseman for  the  conversion  of  goods  taken  from  his  possession  by  an 
armed  force,  without  negligence  or  complicity  on  his  part.  In  Bank 


188  CONVERSION 

v.  Wheeler,  supra,  the  defendant  had  received  for  acceptance  certain 
bills  of  exchange,  and,  at  the  demand  of  the  person  intrusting  them  to 
him,  failed  to  return  them,  saying  he  could  not  find  them,  and  might 
have  torn  them  up  with  papers  he  considered  of  no  value.  It  was  held 
he  was  not  liable  in  trover,  there  being  no  evidence  of  a  voluntary  or 
intentional  destruction  or  loss  of  the  bills;  though  he  was  liable  upon 
his  implied  promise  to  present  the  bills  for  acceptance,  and,  if  not  ac- 
cepted or  paid,  to  give  notice  to  the  plaintiff. 

Without  pursuing  further  an  examination  of  authorities,  it  may 
safely  be  said  that  a  mere  failure  by  a  bailee,  on  demand  made,  to  de- 
liver goods  which  have  been  intrusted  to  him,  is  not  a  conversion 
which  will  support  an  action  of  trover,  if  he  sets  up  no  title  hostile  to 
or  inconsistent  with  the  title  of  'the  bailor,  or  has  not  appropriated 
them  to  his  own  use,  or  to  the  use  of  a  third  person,  or  exercised  over 
them  a  dominion  inconsistent  with  the  bailment.  All  that  can  be  fairly 
predicated  of  the  facts  found  in  the  record  is  the  mere  failure  to  de- 
liver the  cotton  upon  the  demand  of  the  plaintiff,  possession  of  it  not 
remaining  with  the  defendant.  There  was  no  denial  of  the  title  of  the 
plaintiff,  nor  dominion  exercised  over  the  cotton  inconsistent  with  the 
terms  of  the  bailment;  no  evidence  of  a  conversion  or  appropriation 
of  it  to  their  own  use  or  to  the  use  of  any  third  person  by  the  defend- 
ants. The  failure  to  deliver,  unexplained,  raises  a  presumption  of 
negligence  against  them,  and  may  involve  them  in  a  liability  for  a 
breach  of  the  contract  of  bailment,  or  for  negligence  in  the  perform- 
ance of  the  duty  springing  from  the  contract;  but  it  is  not  the  con- 
version— the  positive,  tortious  act — indispensable  to  maintain  trover. 
From  this  view  it  results  there  was  error  in  the  instruction  given  vol- 
untarily by  the  court  below.  The  second,  third,  and  fourth  instruc- 
tions given  at  the  instance  of  the  plaintiff  do  not,  as  is  obvious  from 
what  we  have  said,  find  support  in  the  evidence,  and  for  that  reason 
ought  not  to  have  been  given,  as  their  immediate  tendency  was  to  mis- 
lead the  jury.  The  second,  third,  fourth,  and  fifth  instructions  re- 
quested by  the  defendant  should  have  been  given.  Let  the  judgment 
be  reversed,  and  the  cause  remanded  for  further  proceedings  in  con- 
formity to  this  opinion. 


EXERCISE   OF  DOMINION  189 


III.  Exercise  of  Dominion* 


SWIM  v.  WILSON. 

(Supreme  Court  of  California,  1891.     90  Cal.  126,  27  Pac.  33,  13  L.  R.  A.  605, 

25  Am.  St.  Rep.  110.) 

DE  HAVEN,  J.  The  plaintiff  was  the  owner  of  100  shares  of  stock 
of  a  mining  corporation,  issued  to  one  H.  B.  Parsons,  trustee,  and 
properly  indorsed  by  him.  This  stock  was  stolen  from  plaintiff  by  an 
employe  in  his  office,  and  delivered  for  sale  to  the  defendant,  who  was 
engaged  in  the  business  of  buying  and  selling  stocks  on  commission. 
At  the  time  of  placing  the  stock  in  defendant's  possession,  the  thief 
represented  himself  as  its  owner,  and  the  defendant  relying  upon  this 
representation,  in  good  faith,  and  without  any  notice  that  the  stock 
was  stolen,  sold  the  same  in  the  usual  course  of  business,  and  subse- 
quently, still  without  any  notice  that  the  person  for  whom  he  had  acted 
in  making  the  sale  was  not  the  true  owner,  paid  over  to  him  the  net 
proceeds  of  such  sale.  Thereafter  the  plaintiff  brought  this  action 
to  recover  the  value  of  said  stock,  alleging  that  the  defendant  had  con- 
verted the  same  to  his  own  use,  and,  the  facts  as  above  stated  appear- 
ing, the  court  in  which  the  action  was  tried  gave  judgment  against  de- 
fendant for  such  value,  and  from  this  judgment,  and  an  order  refus- 
ing him  a  new  trial,  the  defendant  appeals.  It  is  clear  that  the  de- 
fendant's principal  did  not  by  stealing  plaintiff's  property  acquire  any 
legal  right  to  sell  it,  and  it  is  equally  clear  that  the  defendant,  acting 
for  him  and  as  his  agent,  did  not  have  any  greater  right,  and  his  act 
was  therefore  wholly  unauthorized,  and  in  law  was  a  conversion  of 
plaintiff's  property.  "It  is  no  defense  to  an  action  of  trover  that  the 
defendant  acted  as  the  agent  of  another.  If  the  principal  is  a  wrong- 
doer, the  agent  is  a  wrongdoer  also.  A  person  is  guilty  of  a  conver- 
sion who  sells  the  property  of  another  without  authority  from  the  own- 
er, notwithstanding  he  acts  under  the  authority  of  one  claiming  to  be 
the  owner,  and  is  ignorant  of  such  person's  want  of  title."  Kimball  v. 
Billings,  55  Me.  147,  92  Am.  Dec.  581 ;  Coles  v.  Clark,  3  Cush.  (Mass.) 
399 ;  Koch  v.  Branch,  44  Mo.  542,  100  Am.  Dec.  324.  In  Stephens  v. 
Elwall,  4  Maule  &  S.  259,  this  principle  was  applied  where  an  innocent 
clerk  received  goods  from  an  agent  of  his  employer,  and  forwarded 
them  to  such  employer  abroad;  and,  in  rendering  his  decision  on  the 
case  presented,  Lord  Ellenborough  uses  this  language :  "The  only  ques- 
tion is  whether  this  is  a  conversion  in  the  clerk,  which  undoubtedly 
was  so  in  the  master.  The  clerk  acted  under  an  unavoidable  ignorance 
and  for  his  master's  benefit,  when  he  sent  the  goods  to  his  master ;  but, 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §  82. 


190  CONVERSION 

nevertheless,  h'is  acts  may  amount  to  a  conversion;  for  a  person  is 
guilty  of  conversion  who  intermeddles  with  my  property,  and  disposes 
of  it,  and  it  is  no  answer  that  he  acted  under  the  authority  of  another, 
who  had  himself  no  authority  to  dispose  of  it."  To  hold  the  defend- 
ant liable,  under  the  circumstances  disclosed  here,  may  seem  upon  first 
impression  to  be  a  hardship  upon  him.  But  it  is  a  matter  of  everyday 
experience  that  one  cannot  always  be  perfectly'  secure  from  loss  in  his 
dealings  with  others,  and  the  defendant  here  is  only  in  the  position 
of  a  person  who  has  trusted  to  the  honesty  of  another,  and  has  been 
deceived.  He  undertook  to  act  as  agent  for  one  whom  it  now  appears 
was  a  thief,  and,  relying  on  his  representations,  he  aided  his  principal 
to  convert  the  plaintiff's  property  into  money,  and  it  is  no  greater  hard- 
ship to  require  him  to  pay  to  the  plaintiff  the  value  of  this  property 
than  it  would  be  to  take  it  away  from  the  innocent  vendee  who  pur- 
chased and  paid  for  it.  And  yet  it  is  universally  held  that  the  pur- 
chaser of  stolen  chattels,  no  matter  how  innocent  or  free  from  negli- 
gence in  the  matter,  acquires  no  title  to  such  property  as  against  the 
owner,  and  this  rule  has  been  applied  in  this  court  to  the  innocent  pur- 
chaser of  shares  of  stock.  Barstow  v.  Mining  Co.,  64  Cal.  388,  1  Pac. 
349,  49  Am.  Rep.  705  ;  Sherwood  v.  Mining  Co.,  50  Cal.  413. 

The  precise  question  involved  here  arose  in  the  case  of  Bercich  v. 
Marye,  9  Nev.  312.  In  that  case,  as  here,  the  defendant  was  a  stock- 
holder who  had  made  a  sale  of  stolen  certificates  of  stock  for  a  stran- 
ger, and  paid  him  the  proceeds.  He  was  held  liable,  the  court  in  the 
course  of  its  opinion  saying:  "It  is  next  objected  that,  as  the  defend- 
ant was  the  innocent  agent  of  the  person  for  whom  he  received  the 
shares  of  stock,  without  knowledge  of  the  felony,  no  judgment  should 
have  been  rendered  against  him.  It  is  well  settled  that  agency  is,  no  de- 
fense to  an  action  of  trover,  to  which  the  present  action  is  analogous." 
The  same  conclusion  was  reached  in  Kimball  v.  Billings,  55  Me.  147, 
92  Am.  Dec.  581,  the  property  sold  in  that  case  by  the  agent  being 
stolen  government  bonds,  payable  to  bearer.  The  court  there  said : 
"Nor  is  it  any  defense  that  the  property  sold  was  government  bonds 
payable  to  bearer.  The  bona  fide  purchaser  of  a  stolen  bond  payable 
to  bearer  might  perhaps  defend  his  title  against  even  the  true  owner. 
But  there  is  no  rule  of  law  that  secures  immunity  to  the  agent  of  the 
thief  in  such  cases,  nor  to  the  agent  of  one  not  a  bona  fide  holder. 
*  *  *  The  rule  of  law  protecting  bona  fide  purchasers  of  lost  or 
stolen  notes  and  bonds  payable  to  bearer  has  never  been  extended  to 
persons  not  bona  fide  purchasers,  nor  to  their  agents."  Indeed,  we 
discover  no  difference  in  principle  between  the  case  at  bar  and  that 
of  Rogers  v.  Huie,  ^  Cal.  429,  54  Am.  Dec.  300,  in  which  case,  Ben- 
nett, J.,  speaking  for  the  court,  said:  "An  auctioneer  who  receives 
and  sells  stolen  property  is  liable  for  the  conversion  to  the  same  ex- 
tent as  any  other  merchant  or  individual.  This  is  so  both  upon  prin- 
ciple and  authority.  Upon  principle,  there  is  no  reason  why  he  should 
be  exempted  from  liability.  The  person  to  whom  he  sells,  and  who  has 


CONVERSION   BY   AGENT  191 

paid  the  amount  of  the  purchase  money,  would  be  compelled  to  deliv- 
er the  property  to  the  true  owner  or  pay  him  its  full  value ;  and  there 
is  no  more  hardship  in  requiring  the  auctioneer  to  account  for  the  val- 
ue of  the  goods  than  there  would  be  in  compelling  the  right  owner  to 
lose  them,  or  the  purchaser  from- the  auctioneer  to  pay  for  them."  It 
is  true  that  this  same  case  afterwards  came  before  the  court,  and  it 
was  held,  in  an  opinion  reported  in  2  Cal.  571,  56  Am.  Dec.  363,  that 
an  auctioneer,  who  in  the  regular  course  of  his  business  receives  and 
sells  stolen  goods,  and  pays  over  the  proceeds  to  the  felon,  without  no- 
tice that  the  goods  were  stolen,  is  not  liable  to  the  true  owner  as  for 
a  conversion.  This  latter  decision,  however,  cannot  be  sustained  on 
principle,  is  opposed  to  the  great  weight  of  authority,  and  has  been 
practically  overruled  in  the  later  case  of  Cerkel  v.  Waterman,  63  Cal. 
34.  In  that  case  the  defendants,  who  were  commission  merchants,  sold 
a  quantity  of  wheat,  supposing  it  to  be  the  property  of  one  Williams, 
and  paid  over  to  him  the  proceeds  of  the  sale  before  they  knew  of  the 
claim  of  the  plaintiff  in  that  action.  There  was  no  fraud  or  bad  faith, 
but  the  court  held  the  defendants  there  liable  for  the  conversion  of  the 
wheat.  In  this  case  it  was  the  duty  of  the  defendant  to  know  for  whom 
he  acted,  and,  unless  he  was  willing  to  take  the  chances  of  loss,  to  have 
satisfied  himself  that  his  principal  was  able  to  save  him  harmless  if  in 
the  matter  of  his  agency  he  incurred  a  liability  by  the  conversion  of 
property  not  belonging  to  such  principal.  Judgment  and  order  af- 
firmed. 

We  concur:    GAROUTTE,  J. ;   MCFARLAND,  J. ;    SHARPSTEIN,  J. 

We  dissent :  BEATTY,  C.  J. ;  PATERSON,  J. 


IV.  Conversion  by  Agent4 
LAVERTYv.  SNETHEN. 

(Court  of  Appeals  of  New  York,  1877.    68  N.  Y.  522,  23  Am.  Rep.  184.) 

CHURCH,  C.  J.  The  defendant  received  a  promissory  note  from 
the  plaintiff,  made  by  a  third  person,  and  indorsed  by  the  plaintiff, 
and  gave  a  receipt  therefor,  stating  that  it  was  received  for  negotiation 
and  the  note  to  be  returned  the  next  day  or  the  avails  thereof.  The 
plaintiff  testified,  in  substance,  that  he,  told  the  defendant  not  to  let 
the  note  go  out  of  his  reach  without  receiving  the  money.  The  de- 
fendant, after  negotiating  with  one  Foote  about  buying  the  note,  de- 
livered the  note  to  him  under  the  promise  that  he  would  get  it  dis- 
counted, and  return  the  money  to  defendant,  and  he  took  away  the 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  82. 


192  CONVERSION 

note  for  that  purpose.    Foote  did  procure  the  note  to  be  discounted, 
but  appropriated  the  avails  to  his  own  use. 

The  court  charged  that,  if  the  jury  believed  the  evidence  of  the 
plaintiff  in  respect  to  instructing  the  defendant  not  to  part  with  the 
possession  of  the  note,  the  act  of  defendant  in  delivering  the  note,  and 
allowing  Foote  to  take  it  away,  was  a  conversion  in  law,  and  the  plain- 
tiff was  entitled  to  recover.  The  exception  has  been  criticised  as  ap- 
plying to  two  propositions,  one  of  which  was  unobjectionable,  and 
therefore  not  available.  Although  not  so  precise  as  is  desirable,  I 
think  that  the  exception  was  intended  to  apply  to  the  proposition  above 
stated,  and  was  sufficient.  The  question  as  to  when  an  agent  is  liable 
in  trover  for  conversion  is  sometimes  difficult.  The  more  usual  liabil- 
ity of  an  agent  to  the  principal  is  an  action  of  assumpsit,  or  what  was 
formerly  termed  an  action  on  the  case  for  neglect  or  misconduct,  but 
there  are  cases  when  trover  is  the  proper  remedy.  Conversion  is  de- 
fined to  be  an  unauthorized  assumption  and  exercise  of  the  right  of 
ownership  over  goods  belonging  to  another,  to  the  exclusion  of  the 
owner's  rights.  A  constructive  conversion  takes  place  when  a  person 
does  such  acts  in  reference  to  the  goods  of  another  as  amount  in  law 
to  appropriation  of  the  property  to  himself.  Every  unauthorized  tak- 
ing of  personal  property,  and  all  intermeddling  with  it,  beyond  the  ex- 
tent of  the  authority  conferred  in  case  a  limited 'authority  has  been 
given,  with  intent  so  to  apply  and  dispose  of  it  as  to  alter  its  condi- 
tion or  interfere  with  the  owner's  dominion,  is  a  conversion.  Bouv. 
Law  Diet,  title  "Conversion."  Savage,  C.  J.,  in  Spencer  v.  Blackman, 
9  Wend.  167,  defines  it  concisely  as  follows:  "A  conversion  seems  to 
consist  in  any  tortious  act  by  which  the  defendant  deprives  the  plain- 
tiff of  his  goods."  In  this  case  the  plaintiff  placed  the  note  in  the 
hands  of  the  defendant  for  a  special  purpose  not  only,  but  with  re- 
stricted authority  (as  we  must  assume  from  the  verdict  of  the  jury) 
not  to  part  with  the  possession  of  the  note  without  receiving  the  money. 
The  delivery  to  Foote  was  unauthorized  and  wrongful,  because  con- 
trary to  the  express  directions  of  the  owner.  The  plaintiff  was  en- 
titled to  the  absolute  dominion  over  this  property  as  owner.  He  had 
a  right  to  part  with  so  much  of  that  dominion  as  he  pleased.  He  did 
part  with  so  much  of  it  as  would  justify  the  defendant  in  delivering  it 
for  the  money  in  hand,  but  not  otherwise.  The  act  of  permitting  the 
note  to  go  out  of  his  possession  and  beyond  his  reach  was  an  act  which 
he  had  no  legal  right  to  do.  It  was  an  unlawful  interference  with  the 
plaintiff's  property,  which  resulted  in  loss,  and  that  interference  and 
disposition  constituted,  within  the  general  principles  referred  to,  a  con- 
version; and  the  authorities,  I  think,  sustain  this  conclusion  by  a  de- 
cided weight  of  adjudication.  A  leading  case  is  Syeds  v.  Hay,  4  Term 
R.  260,  where  it  was  held  that  trover  would  lie  against  the  master  of 
a  vessel  who  had  landed  goods  of  the  plaintiff  contrary  to  the  plain- 
tiff's orders,  though  the  plaintiff  might  have  had  them  by  sending  for 
them,  and  paying  the  wharfage.  Butler,  J.,  said:  "If  one  man  who  is 


CONVERSION   BY  AGENT  193 

intrusted  with  the  goods  of  another  put  them  into  the  hands  of  a  third 
person,  contrary  to  orders,  it  is  a  conversion."  This  case  has  been  re- 
peatedly cited  by  the  courts  of  this  state  as  good  law,  and  has  never; 
to  my  knowledge,  been  disapproved,  although  it  has  been  distinguished 
from  another  class  of  cases  upon  which  the  defendant  relies,  and  which 
will  be  hereafter  noticed. 

In  Spencer  v.  Blackman,  9  Wend.  167,  a  watch  was  delivered  to  the 
defendant  to  have  its  value  appraised  by  a  watchmaker.  He  put  it  in- 
to the  possession  of  the  watchmaker,  when  it  was  levied  upon  by  virtue 
of  an  execution,  not  against  the  owner,  and  it  was  held  to  be  a  con- 
version. Savage,  C.  J.,  said :  "The  watch  was  intrusted  to  him  for  a 
special  purpose,  to  ascertain  its  value.-  He  had  no  orders  or  leave  to 
deliver  it  to  Johnson,  the  watchmaker,  nor  any  other  person."  So, 
when  one  hires  a  horse  to  go  an  agreed  distance,  and  goes  beyond  that 
distance,  he  is  liable  in  trover  for  a  conversion.  Wheelock  v.  Wheel- 
wright, 5  Mass.  103.  So  when  a  factor  in  Buffalo  was  directed  to  sell 
wheat  at  a  specified  price,  on  a  particular  day,  or  ship  it  to  New  York, 
and  did  not  sell  or  ship  it  that  day,  but  sold  it  the  next  day  at  the  price 
named,  held  that,  in  legal  effect,  it  was  a  conversion.  Scott  v.  Rogers, 
31  N.  Y.  676.  See,  also,  Addison  on  Torts,  310,  and  cases  there  cited. 

The  cases  most  strongly  relied  upon  by  the  learned  counsel  for  the 
appellant  are  Dufresne  v.  Hutchinson,  3  Taunt.  117,  and  Sarjeant  v. 
Blunt,  16  Johns.  73,  holding  that  a  broker  or  agent  is  not  liable  in 
trover  for  selling  property  at  a  price  below  instructions.  The  distinc- 
tion in  the  two  classes  of  cases,  I  apprehend,  is  that  in  the  latter  the 
agent  or  broker  did  nothing  with  the  property  but  what  he  was  author- 
ized to  do.  He  had  a  right  to  sell  and  deliver  the  property.  He  dis- 
obeyed instructions  as  to  price  only,  and  was  liable  for  misconduct,  but 
not  for  conversion  of  the  property — a  distinction  which,  in  a  practical 
sense,  may  seem  technical,  but  is  founded  probably  upon  the  distinction 
between  an  unauthorized  interference  with  the  property  itself  and  the 
avails  or  terms  of  sale.  At  all  events,  the  distinction's  fully  recognized 
and  settled  by  authority.  In  the  last  case  Spencer,  J.,  distinguished  it 
from  Syeds  v.  Hay,  supra.  He  said:  "In  the  case  of  Syeds  v.  Hay, 
4  Term  R.  260,  the  captain  disobeyed  his  orders  in  delivering  the  goods. 
He  had  no  right  to  touch  them  for  the  purpose  of  delivering  them  on 
that  wharf." 

The  defendant  had  a  right  to  sell  the  note,  and  if  he  had  sold  it  at 
a  less  price  than  that  stipulated,  he  wrould  not  have  been  liable  in  this 
action ;  but  he  had  no  right  to  deliver  the  note  to  Foote  to  take  away, 
any  more  than  he  had  to  pay  his  own  debt  with  it.  Morally  there  might 
be  a  difference,  but  in  law  both  acts  would  be  a  conversion,  each  con- 
sisting in  exercising  an  unauthorized  dominion  over  the  plaintiff's  prop- 
erty. Palmer  v.  Jarmain,  2  M.  &  W.  282,  is  plainly  distinguishable. 
There  the  agent  was  authorized  to  get  the  note  discounted,  which  he 
did,  and  appropriated  the  avails.  Parke,  B.,  said:  "The  defendant 
CHAP.CAS.TOBTS— 13 


194  CONVERSION 

did  nothing  with  the  bill  which  he  was  not  authorized  to  do."  So 
in  Cairnes  v.  Bleecker,  12  Johns.  300,  where  an  agent  was  authorized 
to  deliver  goods  on  receiving  sufficient  security,  and  delivered  the  goods 
3n  inadequate  security,  it  was  held  that  trover  would  not  lie,  for  the 
reason  that  the  question  of  the  sufficiency  of  the  security  was  a  mat- 
ter of  judgment.  In  McMorris  v.  Simpson,  21  Wend.  610,  Bronson, 
J.,  lays  down  the  general  rule  that  the  action  of  trover  "may  be  main- 
tained when  the  agent  has  wrongfully  converted  the  property  of  his 
principal  to  his  own  use,  and  the  fact  of  conversion  may  be  made  out 
by  showing  either  a  demand  and  refusal,  or  that  the  agent  has  without 
necessity  sold  or  otherwise  disposed  of  the  property,  contrary  to  his 
instructions.  When  an  agent  wrongfully  refuses  to  surrender  the  goods 
of  his  principal,  or  wholly  departs  from  his  authority  in  disposing  of 
them,  he  makes  the  property  his  own,  and  may  be  treated  as  a  tort- 
feasor."  The  result  of  the  authorities  is  that,  if  the  agent  parts  with 
the  property  in  a  way  or  for  a  purpose  not  authorized,  he  is  liable  for 
a  conversion ;  but  if  he  parts  with  it  in  accordance  with  his  authority, 
although  at  less  price,  or  if  he  misapplies  the  avails,  or  takes  inade- 
quate for  sufficient  security,  he  is  not  liable  for  a  conversion  of  the 
property,  but  only  in  an  action  on  the  case  for  misconduct.  It  follows 
that  there  was  no  error  in  the  charge.  The  question  of  good  faith  is 
not  involved.  A  wrongful  intent  is  not  an  essential  element  of  the 
conversion.  It  is  sufficient  if  the  owner  has  been  deprived  of  his  prop- 
erty by  the  act  of  another  assuming  an  unauthorized  dominion  and 
control  over  it.  Boyce  v.  Brockway,  31  N.  Y.  490.  It  is  also  insist- 
ed that  the  parol  evidence  of  instructions  not  to  part  with  the  note  was 
incompetent  to  vary  the  terms  of  the  contract  contained  in  the  receipt. 
This  evidence  was  not  objected  to  not  only,  but  the  point  was  not  taken 
in  any  manner.  The  attention  of  the  court  was  not  called  to  it,  and 
the  court  made  no  decision  in  respect  to  it.  *  *  *  6  All  concur. 
Judgment  affirmed. 


V.  Unlawful  Detention 
1.  UNQUALIFIED  REFUSAL  * 


BOARDMAN  v.  SILL. 

(At  Nisi  Prius.     Sittings  after  Michaelmas  Term,  49  Geo.  in,  1  Campb.  410, 

note.) 

Trover  for  some  brandy,  which  lay  in  the  defendant's  cellars  and 
which  when  demanded  he  had  refused  to  deliver  up,  saying  it  was 
his  own  property.  At  this  time  certain  warehouse  rent  was  due  to 

5  The  remainder  of  the  opinion  is  omitted. 

6  For  discussion  of  principles,  see  Chapin  on  Torts,  §  82. 


UNLAWFUL   DETENTION  105 

the  defendant  on  account  of  the  brandy  of  which  no  tender  had  been 
made  to  him.  The  Attorney-General  contended  that  the  defendant 
had  a  lien  on  the  brandy  for  the  warehouse  rent,  and  that  till  this  was 
tendered,  trover  would  not  lie.  But  LORD  ELLENBOROUGH  considered 
that,  as  the  brandy  had  been  detained  on  a  different  ground  and  as 
no  demand  of  warehouse  rent  had  been  made,  the  defendant  must  be 
taken  to  have  waived  his  lien,  if  he  had  one,  which  would  admit  of 
some  doubt.  The  plaintiff  had  a  verdict. 


STEELE  v.  MARSICANO. 

(Supreme  Court  of  California,  1894.     102  Cal.  666,  36  Pac.  920.) 

HARRISON,  J.  The  defendant  carries  on  the  business  of  packing 
fruit  at  a  warehouse  on  Battery  street,  in  San  Francisco,  under  the 
name  of  Overland  Packing  Company,  and  is  also  the  president  of  the 
American  Salt  Company,  and  has  his  office  or  headquarters  at  the  office 
of  that  corporation,  on  Sacramento  street,  in  that  city.  On  March  19, 
1892,  a  man  named  Laton  visited  the  office  of  the  salt  company,  and  in- 
quired for  the  defendant,  saying  that  he  wished  to  store  some  sugar 
with  him  at  his  place  on  Sacramento  street.  The  defendant  was  absent 
from  San  Francisco,  and  the  clerk  in  charge  told  him  that  they  had 
no  room ;  and,  on  his  inquiring  whether  he  could  store  it  with  the  Over- 
land Packing  Company  for  a  few  days,  the  clerk,  at  his  request,  know- 
ing that  he  was  acquainted  with  defendant,  telephoned  the  inquiry  to 
that  place,  and  received  an  affirmative  reply.  Laton  then  visited  the 
Overland  Packing  Company's  place,  and,  upon  seeing  where  the  sugar 
was  to  be  stored,  said  he  would  send  it  up.  He  then  went  to  the  of- 
fice of  the  plaintiffs,  representing  himself  to  be  a  broker  for  the  de- 
fendant, and  negotiated  the  purchase  in  his  name  of  21  tons  of  sugar, 
and  directed  that  it  be  delivered  to  the  Overland  Packing  Company. 
The  plaintiffs  employed  their  own  drayman  for  that  purpose,  and  when 
he  reached  the  packing  company's  place,  on  Battery  street,  the  foreman 
of  that  place,  and  one  of  his  men,  took  it  on  the  trucks  and  ran  it  into 
the  building ;  and  a  receipt  for  its  delivery  was  given  to  the  drayman, 
in  the  name  of  the  Overland  Packing  Company.  The  sugar  was  de- 
livered on  the  22d  of  March,  but  the  defendant  did  not  learn  of  its 
delivery  until  two  days  thereafter,  when  he  immediately  directed  his 
foreman  to  tell  Laton  to  take  the  sugar  away,  which  he  did,  and  Laton 
removed  the  sugar  the  next  day.  On  the  Monday  following,  which  was 
collection  day,  the  defendant  received  from  the  plaintiffs  a  statement 
of  his  account  or  purchase  of  the  sugar,  and  immediately  visited  the 
office  of  the  plaintiffs,  and  denied  having  made  such  purchase.  The 
record  does  not  show  whether  the  plaintiffs  made  any  explanation  of 
the  transaction  with  Laton,  or  what  steps  they  took  to  investigate  the 
transaction ;  but  they  seem  to  have  become  satisfied  that  the  purchase 


19G  CONVERSION 

of  the  sugar  had  not  been  authorized  by  the  defendant,  as  instead  of 
bringing  an  action  against  the  defendant  for  its  value,  they  made  a 
formal  demand  upon  him,  about  two  weeks  later,  for  its  redelivery,  and 
then  brought  this  action,  charging  him  with  the  conversion  of  the  sugar. 
Judgment  was  rendered  in  the  court  below  in  favor  of  the  plaintiffs, 
and  the  defendant  has  appealed. 

In  order  to  charge  the  defendant  with  the  conversion  of  the  plain- 
tiffs' goods,  he  must  be  shown  to  have  done  some  act  implying  the  ex- 
ercise or  assumption  of  title,  or  of  a  dominion  over  the  goods,  or  some 
act  inconsistent  with  the  plaintiffs'  right  of  ownership,  or  in  repudia- 
tion of  such  right.  A  simple  act  of  intermeddling  with  another's  prop- 
erty, which  does  not  imply  any  assertion  of  title  or  dominion  over  the 
property,  and  which  is  done  in  ignorance  of  the  owner's  claim  thereto, 
and  without  any  intention  to  deprive  him  of  it,  will  not  constitute  a 
conversion.  If  I  find  a  horse  in  my  lot,  I  am  not  guilty  of  its  conver- 
sion if  I  turn  it  into  the  highway.  Nor  is  the  warehouseman,  who  re- 
ceives goods  from  a  wrongdoer,  and  afterwards  redelivers  them  to 
him,  in  ignorance  of  the  claim  of  another,  guilty  of  their  conversion. 
Conversion  is  a  tort,  and,  to  establish  it,  there  must  be  a  tortious  act. 
"If  a  bailee  have  the  temporary  possession  of  property,  holding  the 
same  as  the  property  of  the  bailor,  and  asserting  no  title  in  himself, 
and  in  good  faith,  in  fulfillment  of  the  terms  of  the  bailment,  either 
as  expressed  by  the  parties  or  implied  by  law,  restores  the  property 
to  the  bailor  before  he  is  notified  that  the  true  owner  will  look  to  him 
for  it,  no  action  will  lie  against  him,  for  he  has  only  done  what  was 
his  duty."  Nelson  v.  Iverson,  17  Ala.  216.  See,  also,  Burditt  v.  Hunt, 
25  Me.  422,  43  Am.  Dec.  289.  In  Parker  v.  Lomard,  100  Mass.  408, 
where  the  defendant  took  possession  of  a  warehouse  in  which  there 
was  certain  cotton  belonging  to  the  plaintiff,  but  which  the  defendant, 
upon  information  to  that  effect  received  from  his  predecessor,  entered 
upon  his  books  as  belonging  to  another,  to  whom  he  subsequently  de- 
livered it,  it  was  held  that  he  was  not  liable  for  its  conversion.  In  Hill 
v.  Hayes,  38  Conn.  532,  some  stolen  money  had  been  delivered  to  the 
defendant  by  the  thief,  to  be  kept  for  him.  The  defendant  had  no 
knowledge  that  the  money  had  been  stolen,  and  in  a  few  days  gave  it 
to  a  third  party,  to  be  redelivered  to  her  bailor;  but  it  was  held  that 
she  was  not  guilty  of  conversion.  See,  also,  Frome  v.  Dennis,  45  N. 
J.  Law,  515;  Loring  v.  Mulcahy,  3  Allen  (Mass.)  575;  Gurley  v.  Arm- 
stead,  148  Mass.  267,  19  N.  E.  389,  2  L.  R.  A.  80,  12  Am.  St.  Rep. 
555.  A  demand  of  the  property,  and  a  refusal  to  redeliver  it,  do  not, 
of  themselves,  constitute  conversion.  They  are  merely  evidence  from 
which  a  conversion  may  be  established,  and,  as  evidence,  may  be  re- 
pelled by  proof  that  a  compliance  was  impossible.  Hill  v.  Covell,  1 
N.  Y.  522.  A  refusal  is  not  evidence  of  conversion,  unless  the  party 
had  it  in  his  power  at  the  time  to  deliver  up  the  goods.  Kelsey  v.  Gris- 
wold,  6  Barb.  (N.  Y.)  436.  In  order  to  establish  the  conversion  by 
mere  proof  of  the  demand  and  refusal,  the  plaintiff  must  also  show 


UNLAWFUL   DETENTION  107 

the  ability  of  the  defendant  to  comply  with  the  demand  at  the  time 
it  is  made.  Whitney  v.  Slauson,  30  Barb.  (N.  Y.)  276;  Johnson  v. 
Couillard,  4  Allen  (Mass.)  446. 

Under  these  principles  the  judgment  against  the  defendant  cannot 
be  sustained.  As  Laton  had  no  authority  to  negotiate  a  purchase  of 
the  sugar  for  the  defendant,  the  plaintiffs  do  not  rely  upon  his  pre- 
tended agency,  but  seek  to  charge  the  defendant  with  its  conversion 
by  reason  of  the  acts  done  by  himself ;  claiming  that  the  delivery  of 
the  sugar  to  the  defendant,  and  his  subsequent  refusal  to  redeliver  it 
upon  their  demand,  constitute  such  conversion.  But  the  delivery  of 
the  sugar  to  the  defendant  was  not  the  result  of  any  act  or  authority 
on  his  part.  It  was  delivered  there  at  the  instance  of  Laton,  and  must 
be  considered  as  a  delivery  to  Laton.  As  Laton  had  no  authority  to 
bind  the  defendant,  his  direction  to  the  plaintiffs  to  deliver  the  sugar 
at  the  defendant's  place  of  business,  and  their  delivery  in  pursuance 
thereof,  cannot  create  any  obligations  against  the  defendant  in  refer- 
ence to  the  sugar.  The  taking  of  a  receipt  in  the  name  of  the  Over- 
land Packing  Company  is  immaterial.  It  did  not  establish  any  relation 
of  contract  between  the  plaintiffs  and  the  defendant ;  for  it  was  shown 
by  the  plaintiffs  that  this  delivery  was  made  at  the  instance  of  Laton, 
and  there  was  nothing  in  the  receipt  which  indicated  that  the  delivery 
was  made  in  pursuance  of  a  purchase  on  behalf  of  the  defendant.  The 
receipt  was  only  a  voucher  to  Laton  that  the  plaintiffs  had  followed 
his  direction,  and  had  the  same  effect  as  though  the  sugar  had  been 
placed  on  board  a  vessel  for  transportation,  or  in  some  other  warehouse, 
for  which  a  drayman's  receipt  was  given.  It  could  not  place  the  de-( 
fendant  under  any  obligation  to  the  plaintiffs,  for  at  the  time  of  its 
delivery  there  was  no  statement  on  the  part  of  the  plaintiffs  of  the  pur- 
pose with  which  it  was  brought  to  his  place,  and  the  defendant  was 
justified  in  supposing  that  it  was  the  sugar  which  Laton  had  requested 
might  be  placed  there  for  a  few  days.  The  defendant  must  be  con- 
sidered as  having  received  the  sugar  from  Laton,  and  as  his  bailee. 
Before  the  defendant  had  any  knowledge  of  the  relation  of  the  plain- 
tiffs to  the  sugar,  Laton  had  removed  it  from  the  defendant's  packing 
house,  at  the  direction  of  the  defendant.  This  direction,  and  the  re- 
moval, instead  of  being  the  exercise  of  any  dominion  or  control  over 
the  sugar  by  the  defendant,  was  for  the  purpose  of  avoiding  its  con- 
trol, and  freeing  himself  from  any  connection  with  it.  It  was  restoring 
the  sugar  into  the  hands  and  under  the  control  of  the  party  by  whom  it 
had  been  placed  upon  his  property,  and  was  the  reverse  of  assuming 
any  dominion  or  claim  to  it.  When,  subsequently  the  defendant  visited 
the  plaintiffs'  place  of  business,  in  response  to  the  bill  for  the  sugar 
which  they  had  sent  him,  and  disclaimed  the  purchase,  the  plaintiffs 
do  not  seem  to  have  acquainted  him  with  the  facts  of  the  transaction, 
and  did  not  question  his  declaration  that  he  had  not  made  the  purchase 
until  some  two  weeks  later,  when  they  made  a  formal  demand  for  its 
redelivery.  As,  at  this  time,  it  was  not  in  his  power  to  comply  with 


198  CONVERSION 

the  demand,  his  refusal  did  not  constitute  a  conversion ;  and  as  none  of 
the  previous  acts  done  by  him  with  reference  to  the  sugar  had  been  in 
the  assertion  of  any  dominion  over  it,  or  with  any  knowledge  of  the 
plaintiffs'  rights,  or  from  which  any  repudiation  of  their  rights  could 
be  implied,  he  cannot  be  charged  with  the  conversion.  The  judgment 
and  order  are  reversed. 
We  concur :  GAROUTTE,  J. ;  VAN  FLEET,  J. 


2.  QUALIFIED  REFUSAL  T 


BUFFINGTON  v.  CLARKE. 

(Supreme  Court  of  Rhode  Island,  1887.     15  R.  I.  437,  8  Atl.  247.) 

PER  CURIAM.  The  plaintiff  sues  the  defendant  in  trover  for  the  con- 
version of  a  watch.  The  action  was  tried  in  the  court  of  common 
pleas,  where  a  verdict  was  rendered  for  the  plaintiff,  and  comes  be- 
fore us  now  on  the  defendant's  petition  for  a  new  trial,  on  the  ground 
that  the  verdict  was  against  the  evidence.  The  report  of  the  testimony 
shows  that  the  watch  originally  belonged  to  the  plaintiff's  father,  who 
gave  it  to  the  plaintiff  shortly  before  his  death,  and  that  the  plaintiff 
allowed  his  father's  widow  to  take  and  carry  it,  with  the  understand- 
ing that  it  should  come  back  to  him  at  her  death.  The  watch  remained 
in  her  possession  until  her  death  on  September  13,  1884.  She  was 
a  sister  of  the  defendant,  and  died  in  his  house,  where  she  had  been 
living  for  two  or  three  years.  There  was  some  talk  about  the  watch 
at  the  funeral,  but  no  positive  demand  for  it  was  made.  Indeed,  the 
plaintiff  was  not  present  at  the  funeral.  A  few  days  later  the  plaintiff 
sent  a  letter  to  the  defendant  demanding  the  watch.  The  defendant 
replied  that  his  sister,  the  widow,  had  left  a  will  which  he  had ;  that 
he  would  have  it  probated  at  the  earliest  moment ;  that  the  watch  was 
safe;  and  that  until  somebody  was  appointed  to  take  charge  of  his 
sister's  effects  he  should  not  feel  at  liberty  to  pass  the  custody  of  it  to 
anybody  else.  Thereupon  the  plaintiff  began  this  suit ;  the  writ  therein 
being  dated  September  25,  1884.  It  does  not  appear  that  the  defend- 
ant had  any  knowledge  that  the  watch  belonged  to  the  plaintiff  in  the 
life-time  of  his  sister,  and  he  himself  testified  that  his  sister  always 
treated  and  spoke  of  it  as  her  own.  Neither  does  it  appear  that  the 
defendant,  at  the  time  of  the  demand,  had  any  possession  of  the  watch 
other  than  as  he  had  possession  of  the  other  effects  of  his  sister,  by 
their  being  in  his  house,  nor  that  he  asserted  any  claim  or  right  to  it. 

We  do  not  think  that  the  jury  were  warranted  on  this  testimony  in 
finding  a  conversion  by  the  defendant.  He  did  not  absolutely  refuse 

T  For  discussion  of  principles,  see  Chapin  on  Torts,  §  82. 


UNLAWFUL   DETENTION  199 

to  deliver  the  watch  to  the  plaintiff,  but  only  declined  to  take  it  from 
among  his  sister's  effects,  and  deliver  it  to  him  before  the  appointment 
of  the  executor.  Proof  of  demand  and  refusal  is  only  prima  facie 
proof  of  conversion,  and  is  always  open  to  explanation.  When  the 
refusal  is  only  for  a  time,  for  the  purpose  of  ascertaining  ownership, 
no  conversion  can  be  inferred,  unless  the  refusal  is  unreasonably  pro- 
longed. The  refusal  must  amount  to  a  denial  of  the  demandant's  right 
in  order  to  be  a  conversion.  There  does  not  appear  to  have  been  any- 
thing in  the  conduct  of  the  defendant,  or  in  the  language  used  by  him 
as  reported,  which  could  warrant  the  jury  in  finding  a  denial  of  the 
plaintiff's  right,  or  anything  more  than  a  reasonable  time  to  inquire 
into  and  ascertain  his  duty.  Singer  Mfg.  Co.  v.  King,  14  R.  I.  511; 
also  in  24  Amer.  Law  Reg.  (N.  S.)  51,  and  note. 
Petition  granted. 


3.  QUANTUM  OF  PLAINTIFF'S  INTEREST  • 


CITIZENS'  BANK  OF  ST.  LOUIS  v.  TIGER  TAIL  MILL  & 

LAND  CO. 

(Supreme  Court  of  Missouri,  Division  No.  2,  1890.     152  Mo.  145,  53  S.  W.  902.) 

This  is  an  action  of  trover  for  86  piles  of  cottonwood  lumber,  of 
the  alleged  value  of  $5,000,  of  which  plaintiff  claims  to  have  been  the 
owner,  and  which  it  alleges  was  wrongfully  converted  by  defendant 
to  its  own  use.  The  petition  alleges  "that  heretofore,  to  wit,  on  the 
28th  day  of  August,  1893,  and  ever  since,  plaintiff  became,  has  been, 
and  now  is  the  owner  of  86  piles  of  cottonwood  lumber,  known  as 
and  numbered  1  to  86,  both  numbers  inclusive,  situate  in  the  yard  of 
defendant  at  Tiger  Tail,  Tenn.,  and  altogether  containing  648,100 
feet,  which  said  personal  property  was  and  is  of  the  value  of,  to  wit, 

$5,000 ;  that  afterwards,  to  wit,  on  the day  of  May,  1894,  said 

property  came  into  the  possession  of  the  defendant,  who  then  and 
there  unlawfully  converted  the  same  to  its  own  use,  and  disposed  of 
same,  to  plaintiff's  damage  in  the  sum  of  $5,000,"  etc. 

BURGESS,  J.9  The  first  question  for  consideration  on  this  appeal 
is  with  respect  to  the  sufficiency  of  the  petition,  which  defendant  con- 
tends fails  to  state  a  cause  of  action,  in  that  it  does  not  allege  that 
plaintiff  ever  had  possession  of  the  lumber  in  question,  or  the  right 
to  its  possession.  The  language  of  the  petition  is  ''that  heretofore,  to 
wit,  on  the  28th  day  of  August,  1893,  and  ever  since,  plaintiff  became, 
has  been,  and  now  is  the  owner;  *  *  *  that  afterwards,  to  wit, 
on  the day  of  May,  1894,  said  property  came  into  the  posses- 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  83. 

»  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


200  CONVERSION 

sion  of  the  defendant,  who  then  and  there  unlawfully  converted  the 
same  to  his  own  use,  and  disposed  of  the  same,  to  plaintiff's  damage," 
etc.;  but  it  does  not  allege  that  plaintiff  had  the  possession,  or  the 
right  to  the  immediate  possession,  of  the  lumber  at  any  time.  In 
Darlington  on  Personal  Property  (page  36)  the  rule  is  announced  that 
the  action  of  trover  "may  be  maintained  only  when  the  plaintiff  has 
been  in  possession  of  the  goods  or  has  such  a  property  in  them  as 
draws  to  it  the  right  of  possession."  See,  also,  26  Am.  &  Eng.  Enc. 
Law,  744,  note  5,  and  authorities  cited.  The  action  must  be  bottomed 
on  the  right  of  property  in  the  plaintiff,  who  must  have  the  right  of 
possession  as  well  as  the  right  of  property  at  the  time.  Id.  While  the 
use  of  formal  and  technical  averments,  which  were  necessary  at  com- 
mon law  to  the  statement  of  a  cause  of  action,  have  been  dispensed 
with  by  our  Code,  and  are  no  longer  necessary,  the  same  material  al- 
legations are  necessary  under  it  that  were  necessary  at  common  law ; 
and  it  is  clear,  we  think,  that  at  common  law,  in  order  to  state  a  cause 
of  action  in  trover,  the  petition  should  state  that  the  plaintiff  had  the 
possession,  or  the  right  to  the  possession,  of  the  property  sued  for  at 
the  time  of  the  conversion  (Bank  v.  Fisher,  55  Mo.  App.  51);  and  as 
no  such  averment,  either  expressly  or  by  implication,  is  made  in  the 
petition  in  this  case,  it  must  be  held  to  fail  to  state  a  cause  of  ac- 
tion. *  *  * 


4.  OFFER  TO  RETURN  10 


CARPENTER  v.  MANHATTAN  LIFE  INS.  CO. 

(Supreme  Court  of  New  York,  General  Term,  Second  Department.  1880. 

22  Hun,  47.) 

BARNARD,  P.  J.11  This  is  a  hard  action.  The  plaintiff  was  the 
owner  of  some  hothouse  plants  which  remained  upon  defendant's  prem- 
ises by  its  assent,  and  to  accommodate  the  plaintiff.  The  plaintiff  was 
notified  to  remove  them,  and  he  delayed  doing  so  for  a  considerable 
time;  but  when  he  did  endeavor  to  get  them,  the  defendant  refused  to 
deliver  them  to  the  plaintiff.  This  was  on  Saturday,  May  17,  1879. 
On  Monday  following,  the  defendant  told  the  plaintiff  he  might  have 
the  plants.  On  Tuesday,  May  20,  1879,  this  suit  was  commenced.  The 
court  charged  the  jury  that  the  plaintiff  was  entitled  to  recover  the 
difference  between  the  market  value  of  the  property  on  Saturday  and 
on  Monday,  when  they  were  tendered  back.  We  think  in  this  charge 
the  court  erred.  The  conversion  was  made  out  by  a  refusal  to  deliver 
the  property  on  Saturday.  The  plaintiff's  right  of  action  was  then  com- 

10  For  discussion  of  principles,  see  Chapin  on  Torts,  §  84. 

11  The  statement  of  facts  is  omitted. 


UNLAWFUL   DETENTION  201 

plete,  and  could  not  be  destroyed  without  his  consent.  If,  after  a 
conversion,  the  goods  are  received  back,  either  before  or  after  suit 
brought,  it  goes  to  mitigate  the  damages,  and  no  further.  A  party 
whose  goods  are  converted,  cannot  be  forced  to  receive  them  back. 
Livermore  v.  Northrup,  44  N.  Y.  107;  Reynolds  v.  Shuler,  5  Cow. 
323.  The  judgment  should  therefore  be  reversed  and  a  new  trial 
granted,  costs  to  abide  event. 

DYKMAN,  J. :   I  concur  with  reluctance.    GILBERT,  J.,  dissented. 

Judgment  and  order  denying  new  trial  reversed  and  new  trial  grant- 
ed; costs  to  abide  event. 


202  WASTE 


WASTE 


PROFEITT  v.  HENDERSON. 

(Supreme  Court  of  Missouri,  1860.     29  Mo.  325.) 

This  was  an  action  by  two  of  the  children  of  David  Proffitt,  de- 
ceased, against  John  H.  Henderson.  Plaintiffs  allege  in  their  petition 
that  David  Proffitt  at  his  death  was  seised  of  a  certain  tract  of  two 
hundred  acres ;  that  by  his  last  will  he  devised  said  land  to  his  widow, 
Mary  Proffitt  for  life  and  at  her  death  to  his  children,  John,  Lucy, 
Elizabeth  and  Susan ;  that  said  Mary  Proffitt  the  widow,  conveyed  her 
interest  in  said  land  to  defendant  Henderson  for  fifty  dollars;  that 
Lucy  Proffitt  conveyed  her  interest  also  to  the  defendant;  and  that 
this  portion,  one-fourth,  has  been  allotted  in  partition  to  defendant; 
that  on  the  remaining  one  hundred  and  fifty  acres,  defendant  on,  etc., 
and  since,  etc.,  committed  waste  and  injury  to  said  land,  by  cutting  and 
carrying  away  timber,  to  the  amount  of  six  hundred  dollars;  that 
the  value  of  said  land  was  diminished  by  having  said  timber  cut  and 
carried  away  as  aforesaid  to  the  amount  of  six  hundred  dollars ;  that 
all  the  valuable  rail  timber  on  said  land,  and  a  large  quantity  of  fire- 
wood were  wrongfully  and  unlawfully  cut  and  carried  away  from  said 
land  by  the  defendant;  that  by  said  waste  and  injury  plaintiffs  were 
damaged  to  the  amount  of  four  hundred  dollars,  which  is  two-thirds 
of  the  damages  sustained  to  those  who  own  the  remaining  interest  in 
said  land  by  the  waste  and  injury  aforesaid;  that  the  value  of  the  rail 
timber  and  firewood  cut  and  carried  away  unlawfully  and  wrongfully 
by  defendant  is  three  hundred  dollars;  that  plaintiffs  are  injured  by 
losing  the  value  of  the  timber  thus  cut  and  carried  away  to  the  amount 
of  two  hundred  dollars,  which  is  two-thirds  of  the  damage  sustained 
as  aforesaid ;  that  they  are  damaged  by  the  diminution  in  value  of  said 
land  by  the  acts  and  doings  above  stated  to  the  amount  of  four  hun- 
dred dollars  and  by  losing  the  value  of  the  timber  as  aforesaid  to  the 
amount  of  two  hundred  dollars ;  that  the  plaintiffs  are  each  entitled  to 
one-third  of  the  tract  of  one  hundred  and  fifty  acres  at  the  death  of 
Mary  Proffitt.  Plaintiff  prayed  judgment  for  six  hundred  dollars 
and  that  defendant  be  enjoined  from  cutting  timber.  The  court  sus- 
tained a  demurrer  to  this  petition.  This  constitutes  the  error  com- 
plained of. 

EWING,  Judge,  delivered  the  opinion  of  the  court. 

Waste  is  defined  to  be  the  destruction  of  such  things  on  the  land  by 
a  tenant  for  life  or  years  as  are  not  included  in  its  temporary  profits. 
In  other  words,  it  consists  in  such  acts  as  tend  to  the  permanent  loss 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  86. 


WASTE  203 

of  the  owner  in  fee  or  to  destroy,  or  lessen  the  value  of  the  inheritance. 
1  Hill,  on  Real  Prop.  261.  The  American  doctrine  on  the  subject  of 
waste,  observes  Chancellor  Kent,  is  somewhat  varied  from  the  English 
law,  and  is  more  enlarged  and  better  accommodated  to  the  circum- 
stances of  a  new  and  growing  country.  In  England  the  destruction  of 
timber  carries  with  it  the  idea  of  a  permanent  injury  to  the  estate,  as 
timber  is  scarce  and  forest  trees  are  planted  for  useful  as  well  as  or- 
•  namental  purposes,  and  are  too  valuable  to  permit  the  timber  to  be 
unnecessarily  destroyed.  It  is  not  waste  in  this  country  to  convert 
arable  land  into  meadow,  nor  vice  versa ;  nor  is  it  waste  to  clear  land 
by  a  tenant  for  life.  But  there  is  a  due  and  reasonable  medium  to  be 
observed  according  to  the  custom  of  farmers.  To  cut  down  all  the 
timber  on  a  tract  of  land  and  sell  it  would  be  waste,  because  it  would 
be  detrimental  to  the  inheritance.  McCullough  v.  Irvine's  Ex'rs,  13 
Pa.  338.  But  cutting  timber  and  clearing  land  may,  so  far  from  being 
waste,  often  enhance  the  value  of  the  inheritance ;  and  it  is  only  when 
there  is  lasting  damage  to  the  reversionary  interest,  or  its  value  has 
been  lessened,  that  the  tenant  in  such  case  is  liable  for  waste. 

In  Davis  v.  Gilliam,  40  N.  C.  311,  the  doctrine  is  stated  by  Chief 
Justice  Ruffin  thus:  That,  as  the  state  of  the  country  now  is  a  ten- 
ant for  life  of  land  entirely  wild,  might  clear  as  much  of  it  for  culti- 
vation as  a  prudent  owner  of  the  fee  would ;  and  might  sell  the  timber 
that  grew  on  that  part  of  the  land.  Clearing  for  cultivation,  he  says, 
has,  according  to  the  decisions,  peculiar  claims  for  protection  and  a 
sale  of  the  timber  from  the  field  cleared  may  be  justly  made  in  com- 
pensation for  clearing  and  bringing  it  into  cultivation.  But  it  seems 
altogether  unjust  that  a  particular  tenant  should  take  off  the  timber 
without  any  adequate  compensation  to  the  estate  for  the  loss  of  it;  for 
he  takes  in  that  case  not  the  product  of  the  estate  arising  in  his  own 
time,  but  he  takes  that  which  nature  has  been  elaborating  through 
ages,  being  a  part  of  the  inheritance  itself,  and  that  too  which  imparts 
to  it  its  chief  value. 

The  rule  of  pleading  in  such  actions  as  this  is  that,  if  the  plaintiff 
declare  as  reversioner  for  an  injury  done  to  his  reversion,  the  decla- 
ration must  allege  it  to  have  been  done  to  the  damage  of  his  reversion, 
or  must  state  an  injury  of  such  a  permanent  nature  as  to  be  neces- 
sarily injurious  to  his  reversion.  Jackson  v.  Peshed,  1  M.  &  S.  221; 
Potts  v.  Clarke,  20  N.  J.  Law,  542.  Are  the  acts  complained  of  as 
wrongful  of  such  a  nature  as  necessarily  to  result  in  an  injury  to  the 
reversionary  interest?  The  petition  charges  that  defendant  cut  down 
and  carried  away  all  the  valuable  rail  timber,  and  that  the  value  of  the 
timber  so  carried  away  is  three  hundred  dollars,  and  that  the  land  in 
consequence  thereof  is  diminished  in  value  to  the  amount  of  six  hun- 
dred dollars. 

It  is  objected  that  the  petition  fails  to  show  that  the  cutting  of  the 
timber  was  not  necessary  to  the  profitable  enjoyment  of  the  land,  or 
that  it  was  not  done  for  the  purpose  of  cultivation,  and  that  it  is  not 


204  WASTE 

alleged  that  the  land  is  valuable  for  any  purpose  except  the  timber. 
As  it  respects  the  first  of  these  objections  to  the  petition,  it  is  conceiv- 
ed that  the  profitable  enjoyment  of  the  land  is  not  the  proper  criterion 
to  determine  the  question  of  waste.  There  may  be  waste  when  there 
is  such  profitable  enjoyment  and  there  may  be  profitable  enjoyment 
without  waste.  The  cutting  of  the  timber  may  have  been  necessary 
to  the  profitable  enjoyment  of  the  land  according  to  the  tenant's  stand- 
ard of  profit,  and  yet  have  been  a  great  outrage  upon  the  rights  of  the 
reversioner.  It  may  have  been  more  profitable  to  the  tenant  to  have 
cut  down  and  taken  away  the  valuable  timber,  as  the  petition  alleges, 
than  to  have  used  it  in  clearing  the  land  or  some  portion  of  it.  As  to 
the  next  objection,  that  the  petition  is  defective  in  not  alleging  that 
the  timber  was  not  cut  for  the  purpose  of  cultivation,  we  think  it 
clearly  appears,  though  not  so  expressly  stated,  that  it  was  not  for 
this  purpose.  The  defendant  had  purchased  the  interest  of  one  of  the 
owners  in  fee,  being  one-fourth  of  the  tract  of  two  hundred  acres, 
which,  under  an  order  of  partition  had  been  set  off  to  him,  and  thus 
merged  his  life  estate  as  to  that  part  of  the  fee,  and  upon  the  remain- 
ing portion  of  said  tract  one  hundred  and  fifty  acres,  the  waste  is  al- 
leged to  have  been  committed.  And  the  averment  that  all  the  valuable 
rail  timber  was  cut  down  and  carried  away  clearly  enough  negatives 
the  idea  of  its  having  been  used  in  clearing  the  land  or  for  any  other 
purpose  on  the  premises.  The  other  objection,  that  there  is  no  alle- 
gation that  the  land  was  not  valuable  for  any  other  purpose  except 
timber,  is  not  well  taken;  for,  if  the  land  is  valuable  for  the  timber 
only,  it  would  surely  be  waste  for  a  tenant  to  cut  and  carry  away  all 
the  timber  of  any  value.  If  useful  for  the  timber  alone,  the  tenant 
must  in  that  case,  as  in  all  others,  respect  the  rights  of  the  owner  of 
the  inheritance  and  his  enjoyment  of  it  must  be  regulated  accordingly. 
The  other  Judges  concurring,  the  judgment  will  be  reversed  and  the 
cause  remanded. 


FRAUD  205 

FRAUD 
I.  Statement1 
1.  PROMISE     ' 


LONG  v.  WOODMAN. 
(Supreme  Judicial  Court  of  Maine,  1870.    58  Me.  49.) 

,  C.  J.2  This  is  an  action  on  the  case  for  deceit.  The 
defendant  has  filed  a  special  demurrer  to  the  declaration,  which  has 
been  joined.  The  only  inquiry  arising  is  whether  it  sets  forth  any 
cause  of  action. 

When  stripped  of  all  inculpatory  phraseology,  the  declaration  al- 
leges the  following  facts :  That  on  the  6th  day  of  March,  1868,  the  de- 
fendant, and  one  George  W.  Reed,  induced  the  plaintiff  to  convey  to 
them  certain  real  estate,  described  in  the  writ,  by  lending  to  him  (the 
plaintiff)  two  hundred  and  thirty-six  dollars,  and  by  promising  to  give 
him  a  bond  to  reconvey  the  property  in  two  years,  upon  the  payment 
of  said  sum  and  interest ;  that  after  obtaining  said  deed  they  (the  de- 
fendant and  said  Reed)  refused  to  give  said  bond ;  that  on  the  5th  day 
of  March,  1870,  the  plaintiff  tendered  to  the  defendant  the  sum  of 
three  hundred  and  fifty  dollars,  being  said  sum  of  two  hundred  and 
thirty-six  dollars  and  interest  thereon,  and  all  other  charges  and  ex- 
penses to  which  defendant  had  been  put,  on  account  of  said  property, 
including  taxes  and  all  other  sums  due  from  the  plaintiff  to  the  defend- 
ant; and  that  he  demanded  a  reconveyance  of  said  property,  which 
defendant  then  and  there  refused  to  make. 

To  entitle  a  party  to  maintain  an  action  for  deceit  by  means  of  false 
representations,  he  must,  among  other  things,  show  that  the  defend- 
ant made  false  and  fraudulent  assertions,  in  regard  to  some  fact  or 
facts  material  to  the  transaction  in  which  he  was  defrauded,  by  means 
of  which  he  was  induced  to  enter  into  it.  The  misrepresentation  must 
relate  to  alleged  facts  or  to  the  condition  of  things  as  then  existent. 
It  is  not  every  misrepresentation,  relating  to  the  subject-matter  of  the 
contract,  which  will  render  it  void  or  enable  the  aggrieved  party  to 
maintain  his  action  for  deceit.  It  must  be  as  to  matters  of  fact,  sub- 
stantially affecting  his  interests,  not  as  to  matters  of  opinion,  judg- 
ment, probability,  or  expectation.  Hazard  v.  Irwin,  18  Pick.  (Mass.) 
95.  An  assertion  respecting  them  is  not  an  assertion  as  to  any  existent 
fact.  The  opinion  may  be  erroneous ;  the  judgment  may  be  unsound; 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  87,  88. 
*  The  statement  of  facts  is  omitted. 


206  FRAUD 

the  expected  contingency  may  never  happen ;  the  expectation  may  fail. 
An  action  of  tort,  for  deceit  in  the  sale  of  property,  does  not  lie  for 
false  and  fraudulent  representations  concerning  profits  that  may  be 
made  from  it  in  the  future.  Pedrick  v.  Porter,  5  Allen  (Mass.)  324. 
An  action  for  deceit  in  the  sale  of  real  estate  cannot  be  sustained  by 
proof  of  fraudulent  misrepresentations  as  to  the  price  paid  by  the  ven- 
dor. Hemmer  v.  Cooper,  8  Allen,  334. 

So  in  criminal  law,  to  sustain  an  indictment  for  cheating  by  false 
pretences,  there  must  be  direct  and  positive  assertion  as  to  some  exist- 
ing matter  of  fact,  by  which  the  victim  is  induced  to  part  with  his  money 
or  property.  A  false  representation,  promissory  in  its  nature,  as  to 
pay  money  or  do  some  other  act,  has  never  been  held  to  be  the  founda- 
tion of  a  criminal  charge.  Ranney  v.  People,  22  N.  Y.  413.  In  an  in- 
dictment for  obtaining  goods  under  false  pretences,  no  statement  of 
anything  to  take  place  in  the  future  will  constitute  a  pretence  within 
the  meaning  of  the  statute.  Glackan  v.  Com.,  3  Mete.  (Ky.)  232.  A 
representation  or  assurance  in  relation  to  a  future  event  is  not  a  statu- 
tory false  pretence.  State  v.  Magee,  11  Ind.  154. 

Here  the  defendant,  when  or  after  he  obtained  his  deed,  promised 
"to  make,  execute,  and  deliver  a  good  and  sufficient  bond,"  to  recon- 
vey,  upon  certain  conditions,  the  land  conveyed  to  him  and  Reed,  which 
upon  request  he  refused  to  do.  Here  is  no  false  representation  or  con- 
cealment of  an  existent  fact.  Yet  this  is  the  gist  of  the  plaintiff's  com- 
plaint, that  a  promise  made  has  not  been  performed.  Had  it  been 
performed,  the  plaintiff  had  no  case. 

Here  is  a  promise  to  do  some  future  act ;  but  whether  it  be  to  pay 
money  or  give  a  bond  is  immaterial.  If  the  promise  had  been  to  pay  a 
sum  of  money  instead  of  giving  a  bond,  no  action  for  deceit  could  have 
been  maintained,  though  the  money  was  not  paid  at  the  stipulated  time. 
This  case  in  no  respect  differs  from  a  broken  promise  to  pay  for 
goods  sold.  The  goods  are  delivered  upon  the  expectation  that  the 
promise  to  pay  will  be  performed.  The  deed  was  given  upon  the  ex- 
pectation that  the  bond  would  be  delivered  in  accordance  with  the  prom- 
ise of  the  grantee. 

The  declaration  sets  forth  a  promise  to  deliver  a  certain  bond  as 
therein  described.  It  does  not  state  whether  it  is  in  writing  or  not. 
There  is  no  special  plea  denying  it  to  be  in  writing.  Lawrence  v.  Chase, 
54  Me.  196.  If  the  promise  was  in  writing,  it  was  for  a  sufficient  con- 
sideration, and  the  plaintiff  may  maintain  an  action  thereon.  If  not 
in  writing  it  would  be  void  by  the  statute  of  frauds.  Lawrence  v. 
Chase,  54  Me.  196.  But  a  verbal  promise  within  the  statute  is  no  false 
representation.  It  is  a  promise,  for  the  violation  of  which  the  law  fails 
to  provide  a  remedy,  in  case  of  its  nonperformance.  In  Fisher  v.  New 
York  C.  P.,  18  Wend.  (N.  Y.)  608,  the  facts  were  somewhat  similar  to 
those  in  the  case  at  bar.  The  plaintiff  below  leased  certain  premises  to 
the  defendant,  and  promised  to  make  repairs  thereon,  which  he  refused 


STATEMENT  207 

to  do.  Mr.  Justice  Cowan,  in  delivering  the  opinion  of  the  court,  uses 
the  following  language :  "Fraud  cannot  be  predicated  of  a  promise  not 
performed,  for  the  purpose  of  avoiding  a  written  instrument,  or  a  bar- 
gain of  any  kind.  This  case  is  no  more.  A  contrary  doctrine  would 
avoid  almost  every  contract  for  a  breach  of  which  a  suit  is  to  be 
brought.  I  have  only  to  say  that  the  tenant  and  defendant  below  were 
content  to  take  the  plaintiff's  word.  If  that  was  not  legally  obligatory, 
then  there  has  been  a  mistake  of  the  law ;  but  the  defendant  could  not 
set  that  up  as  fraud."  The  case  of  Com.  v.  Brenneman,  1  Rawle  (Pa.) 
314,  resembles  the  present.  In  delivering  the  opinion  of  the  court, 
Rogers,  J.,  says:  "There  is  no  doubt  that  in  the  breach  of  promise, 
Henry  Brenneman,  in  a  moral  point  of  view,  was  guilty  of  fraud ;  but 
it  was  no  more  fraudulent  than  any  other  breach  of  trust  or  promise. 
There  was  no  false  representation  or  concealment  of  any  existing  fact, 
which  constitutes  the  legal  idea  of  fraud." 

Exceptions  overruled. 

KENT,  WAI/TON,  BARROWS,  DANFORTH,  and  TOPLEY,  JJ.,  concurred. 


2.  OPINION 


DEMING  v.  DARLING. 

(Supreme  Judicial  Court  of  Massachusetts,  1889.    148  Mass.  504,  20  N.  E.  107, 

2  L.  R.  A.  743.) 

HOLMES,  J.8  This  is  an  action  for  fraudulent  representations  al- 
leged to  have  been  made  to  one  Dr.  Jordan,  the  plaintiff's  agent  for 
the  purpose  of  inducing  the  plaintiff  to  purchase  a  railroad  bond  from 
the  defendant.  *  *  * 

Among  the  representations  relied  on,  one  was  that  the  railroad 
mortgaged,  which  was  situated  in  Ohio,  was  good  security  for  the 
bonds ;  and  another  was  that  the  bond  was  of  the  very  best  and  safest, 
and  was  an  A  No.  1  bond.  With  regard  to  these  and  the  like,  the  de- 
fendant asked  the  court  to  instruct  the  jury  "that  no  representations 
which  the  defendant  might  have  made  or  did  make  to  Dr.  Jordan  in 
relation  to  the  value  of  the  bond  in  question,  or  of  the  railroad,  its 
terminals,  and  other  property  which  were  mortgaged  to  secure  it,  with 
other  bonds,  even  though  false,  were  representations  upon  which  Dr. 
Jordan  ought  to  have  relied,  and  are  not  sufficient  to  furnish  any 
grounds  for  this  action,"  and  also  "that  each  of  the  expressions  'and 
that  the  same'  (meaning  said  railroad  and  all  the  property  covered  by 
the  mortgage)  'was  good  security  for  said  bonds,'  'that  said  bond  was  of 
the  very  best  and  safest,  and  was  an  A  No.  1  bond/  are  expressions  of 

s  Portions  of  the  opinion  have  been  omitted. 


208  FRAUD 

opinion  of  value,  and  even  though  false,  are  not  such  representations 
as  Dr.  Jordan  had  a  right  to  rely  upon,  and  are  not  enough  to  furnish 
any  grounds  for  this  action." 

The  court  declined  to  give  these  instructions,  and  instead  instructed 
the  jury  that  "an  expression  of  opinion,  judgment,  or  estimate,  or  a 
statement  of  a  promissory  nature  relating  to  what  would  be  in  the 
future,  so  far  as  they  were  expressions  of  opinion,  if  made  in  good 
faith,  however  strong  as  expressions  of  belief,  would  not  support  an 
action  of  deceit." 

It  will  be  seen  that  the  fundamental  difference  between  the  instruc- 
tions given  and  those  asked  is  that  the  former  require  good  faith.  The 
language  of  some  cases  certainly  seems  to  suggest  that  bad  faith  might 
make  a  seller  liable  for  what  are  known  as  seller's  statements,  apart 
from  any  other  conduct  by  which  the  buyer  is  fraudulently  induced  to 
forbear  inquiries.  Pike  v.  Fay,  101  Mass.  134.  But  this  is  a  mistake. 
It  is  settled  that  the  law  does  not  exact  good  faith  from  a  seller  in 
those  vague  commendations  of  his  wares  which  manifestly  are  open  to 
difference  of  opinion,  which  do  not  imply  untrue  assertions  concerning 
matters  of  direct  observation  (Teague  v.  Irwin,  127  Mass.  217),  and  as 
to  which  it  always  has  been  "understood,  the  world  over,  that  such 
statements  are  to  be  distrusted."  Brown  v.  Castles,  11  Cush.  348,  350; 
Gordon  v.  Parmelee,  2  Allen,  212;  Parker  v.  Moulton,  114  Mass.  99, 
19  Am.  Rep.  315;  Poland  v.  Brownell,  131  Mass.  138,  142,  41  Am. 
Rep.  215 ;  Burns  v.  Lane,  138  Mass.  350,  356.  Parker  v.  Moulton  also 
shows  that  the  rule  is  not  changed  by  the  mere  fact  that  the  property  is 
at  a  distance,  and  is  not  seen  by  the  buyer.  Moreover,  in  this  case, 
market  prices  at  least  were  easily  accessible  to  the  plaintiff. 

The  defendant  was  known  by  the  plaintiff's  agent  to  stand  in  the 
position  of  a  seller.  If  he  went  no  further  than  to  say  that  the  bond 
was  an  A  No.  1  bond,  which  we  understand  to  mean  simply  that  it  was 
a  first  rate  bond,  or  that  the  railroad  was  good  security  for  the  bonds, 
we  are  constrained  to  hold  that  he  is  not  liable  under  the  circumstances 
of  this  case,  even  if  he  made  the  statement  in  bad  faith.  See,  further, 
Veasey  v.  Doton,  3  Allen,  380;  Belcher  v.  Costello,  122  Mass.  189. 
The  rule  of  law  is  hardly  to  be  regretted,  when  it  is  considered  how 
easily  and  insensibly  words  of  hope  or  expectation  are  converted  by 
an  interested  memory  into  statements  of  quality  and  value  when  the 
expectation  has  been  disappointed.  *  *  * 

Exceptions  sustained. 


STATEMENT  209 


3.  CONCEALMENT* 


KIDNEY  v.  STODDARD. 
(Supreme  Judicial  Court  of  Massachusetts,  1843.     7  Mete.  252.) 

Trespass  upon  the  case  for  an  alleged  fraudulent  representation  by 
the  defendant  as  to  the  credit  of  his  son,  Alden  D.  Stoddard,  Jr.,  in 
the  following  letter  to  F.  Delano,  of  New  York:  "Fairhaven,  9  mo. 
27th,  1841.  Franklin  Delano,  Esq. — My  Dear  Sir:  The  bearer,  my 
son,  A.  D.  Stoddard,  Jr.,  wishes  to  purchase  a  bill  of  goods  in  your 
city.  Any  assistance  you  can  render  him,  by  a  recommendation  or 
otherwise,  will  be  gratefully  received  by  him  and  much  oblige  your 
obedient  servant  who  will  take  the  liberty  to  say  that  A.  D.  S.,  Jr.'s, 
contracts,  of  whatever  nature,  will  unquestionably  be  punctually  at- 
tended to.  Very  respectfully,  your  friend,  A.  D.  Stoddard." 

At  the  trial  before  Wilde,  J.,  one  Ammidon  testified  that  he  was 
agent  of  the  plaintiffs ;  that  Stoddard,  Jr.,  called  on  him  in  New  York, 
about  the  1st  of  October,  1841,  to  purchase  some  goods  and  referred 
him  to  Delano;  that  the  witness  called  on  Delano,  who  showed  said 
letter  to  him  and  stated  that  he  was  not  acquainted  with  the  young 
man,  but  knew  his  father  and  believed  him  to  be  a  responsible  man; 
that  from  the  knowledge  he  had  of  him  he  should  believe  he  would  see 
his  son  through,  and  that  on  the  strength  of  the  letter  he  should  sell  the 
young  man  goods  to  the  amount  of  four  or  five  hundred  dollars ;  that 
the  witness  at  that  time  sold  to  the  son  goods  to  the  amount  of  $260 
and  afterwards  to  the  amount  of  $158.50;  that  the  son  afterwards 
applied  for  more  goods,  but  the  witness  refused  to  sell  him.  The  wit- 
ness testified  that  he  would  not  have  sold  him  the  goods,  had  it  not 
been  for  the  said  letter  and  the  representations  of  Delano;  that  no 
part  of  the  debt  had  ever  been  paid ;  that  he  had  never  attempted  to 
recover  the  amount  of  the  young  man ;  that  he  had  called  on  the  defend- 
ant to  effect  a  settlement,  and  told  him  that  he  (the  witness)  had  un- 
derstood since  the  sales  that  his  son  was  a  minor  at  the  time  the  letter 
was  written ;  that  the  defendant  admitted  that  such  was  the  fact,  re- 
fused to  pay  the  debt,  and  stated  that  his  son  had  gone  to  sea  on  a 
whaling  voyage. 

There  was  other  evidence  to  show  that  the  son  was  a  minor  when 
the  letter  was  written,  being  between  twenty  and  twenty-one  years  of 
age,  and  that  he  had  then  been  in  business,  as  a  dealer  in  hats,  a  year  or 
more. 

The  judge  instructed  the  jury  that  when  a  party  intentionally  con- 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  87,  88, 
CHAP.CAS.TOBTS — 14 


210  FRAUD 

ceals  a  material  fact  in  giving  a  letter  of  recommendation  it  amounts  to 
a  false  representation ;  that  the  defendant,  giving  a  letter  in  this  case  to 
an  unlimited  amount,  was  bound  to  communicate  every  material  fact; 
that  if  he  concealed  the  fact  that  the  son  was  a  minor  with  the  view 
to  give  him  a  credit,  knowing  or  believing  that  he  would  not  get  a 
credit  if  that  fact  was  known,  it  was  fraud,  and  the  plaintiff  was  enti- 
tled to  recover;  that  it  was  immaterial  whether  there  was  any  moral 
fraud ;  and  that  every  man  was  presumed  to  know  the  consequences  of 
his  own  acts. 

The  defendant's  counsel  requested  the  judge  to  instruct  the  jury 
that,  if  the  defendant  gave  his  opinion  merely,  he  was  not  bound  to  com- 
municate any  facts,  and  that,  if  he  gave  an  honest  opinion,  he  was  not 
liable.  But  the  judge  refused  so  to  instruct  the  jury.  It  was  also 
contended  by  the  defendant's  counsel  that  the  plaintiffs  should  have 
made  an  effort  to  recover  the  debt  of  the  son. 

The  jury  found  a  verdict  for  the  plaintiffs  for  the  amount  of  the 
goods  sold,  and  the  defendant  moved  for  a  new  trial  on  the  ground 
that  the  jury  were  misdirected  in  matter  of  law. 

HUBBARD,  J.  This  cause  has  been  argued  with  ability  and  feeling 
by  the  counsel  for  the  defendant,  who,  it  had  been  urged,  was  a  fa- 
ther, and  whose  letter  was  written  with  strong  expressions  of  parental 
confidence  and  affection,  and  at  the  same  time  without  false  allegations 
in  it.  But,  while  sympathy  for  a  client  is  highly  praiseworthy  on  the 
part  of  counsel,  the  court  are  required  not  to  yield  to  sympathies,  or 
to  give  way  to  compassion,  but  to  administer  the  law  in  its  integrity, 
although  it  may  seem  to  bear  hardly  in  particular  instances.  To  bend 
the  rules  of  law,  to  avoid  the  pressure  in  individual  cases,  would  pro- 
duce uncertainty  in  the  law  itself,  and  in  the  end  be  subversive  of 
justice. 

It  is  argued  that  the  jury  were  compelled  to  find  for  the  plaintiffs, 
on  the  mere  concealment  of  a  single  fact  by  the  defendant ;  or,  in  other 
words,  that  the  charge  of  the  presiding  judge  was  erroneous.  But  the 
jury  was  not  directed  to  return  a  verdict  for  the  plaintiffs,  unless  they 
found,  as  a  fact,  that  the  defendant  concealed  that  his  son  was  a  minor, 
with  a  view  to  give  him  a  credit  and  knowing  or  believing  that  he  would 
not  obtain  a  credit  if  that  fact  were  known. 

It  is  very  certain,  as  has  been  maintained  by  the  defendant's  coun- 
sel, that  a  mistaken  opinion  honestly  given  can  never  be  taken  as  a 
fraudulent  representation.  This  is  true  in  principle  and  supported 
abundantly  by  authorities.  But  the  misfortune  of  the  defendant's  case 
is  that  the  verdict  of  the  jury  rests  not  on  the  honest  mistake  of  the 
defendant,  but  upon  the  ground  of  material  concealment  of  a  fact  es- 
pecially within  his  knowledge ;  a  fact  important  to  be  known  as  it  re- 
garded the  credit  of  the  son ;  a  fact  designedly  concealed  and  with  the 
view  of  obtaining  that  credit  for  the  son,  which  he,  the  father,  knew 
or  believed  he  could  not  obtain  if  that  fact  were  known. 


STATEMENT  211 

It  needs  no  lengthened  argument  to  establish  the  materiality  of  the 
fact.  The  result  of  this  case  is  a  sufficient  witness  of  it.  The  plain- 
tiffs were  induced  by  the  letter,  from  which  this  fact  was  carefully 
excluded,  to  give  a  credit  to  the  son  which  they  would  not  otherwise 
have  given ;  and,  as  the  direct  consequence  of  it,  they  have  sustained 
the  loss  set  out  in  the  declaration.  Here  then  are  proved  fraud  and 
deceit  on  the  part  of  defendant,  and  damage  to  the  plaintiffs ;  and  these 
facts  have  long  been  held  to  constitute  a  substantial  cause  of  action, 
From  the  time  of  the  judgment  in  the  great  case  of  Pasley  v.  Freeman, 
3  T.  R.  51,  to  the  present  day,  through  the  long  line  of  decisions  both 
in  England  and  America,  the  principle  of  that  case,  though  with  some 
statute  modifications,  remains  unshaken  and  unimpaired. 

The  case  at  bar  has  been  likened  to  that  of  Tyron  v.  Whitmarsh,  1 
Aletc.  1,  35  Am.  Dec.  339,  and  the  letters  in  the  two  cases  have  much 
similarity.  But  in  that  case,  in  which  the  authorities  were  carefully 
examined  by  the  court,  it  was  decided  that  the  letter  might  have  been 
written  with  an  honest  conviction  of  the  truth  of  the  assertions  con- 
tained in  it.  But  in  the  case  at  bar  there  was  the  designed  conceal- 
ment of  a  fact  with  intent  to  procure  a  credit  which  could  not  be  ob- 
tained if  the  fact  were  made  known ;  and  this  the  defendant  well  knew 
or  believed.  We  think  that  the  principles  laid  down  in  that  case,  though 
the  verdict  was  set  aside,  are  decisive  of  the  present  case.  The  court 
there  say :  "We  are  therefore  of  opinion  that  the  question  for  the  jury 
was  whether  the  defendant  knew  that  the  assertion  or  opinion  con- 
tained in  his  letter  was  false,  or  that  he  did  not  fully  believe  it  to  be 
true,  or  whether  he  did  not  conceal  a  material  fact  from  the  knowledge 
of  the  plaintiffs  with  the  intention  to  deceive  them.  It  is  true,  as  the  de- 
fendant's counsel  have  argued,  that  the  defendant  was  not  bound  to 
disclose  the  facts  on  which  his  opinion  was  founded;  but,  if  he  kept 
back  any  material  fact  with  the  intent  to  deceive  the  plaintiffs,  this 
would  be  fraudulent."  So  in  Lobdell  v.  Baker,  1  Mete.  201,  35  Am. 
Dec.  358,  a  case,  though  very  different  in  its  facts,  yet  having  features 
of  resemblance  to  this,  the  court  say:  "There  was  no  evidence  that 
the  defendant  made  any  express  declaration  that  the  note  sold  was  a 
valid  note,  and  that  the  makers  and  indorsers  were  liable ;  but  we  are 
all  of  opinion  that  if  he  fraudulently  procured  the  indorsement  of 
Swan,  and  then  authorized  Winslow  to  sell  the  note,  without  erasing 
the  name  of  Swan,  knowing  as  he  did  that  Swan  was  a  minor,  and  not 
by  law  liable  on  the  note,  all  this  would  be  equivalent  to  an  express  af- 
firmation that  the  note  was  a  valid  contract,  on  which  the  makers  of 
the  note  and  the  indorsers  were  by  law  liable." 

It  was  also  argued,  in  arrest  of  judgment,  that  the  plaintiffs  could 
not  recover,  because  they  had  made  no  attempt  to  procure  the  debt 
from  the  son;  but  it  being  apparent  that  the  declaration  set  forth  a 
good  cause  of  action,  the  defendant's  counsel,  waiving  the  motion  in 
arrest,  argued  that  the  plaintiffs  had  not  made  out  a  case  for  dam- 


212  FRAUD 

ages,  because  they  had  not  prosecuted  the  claim  against  the  son  to  final 
judgment;  as  infancy  is  only  a  personal  privilege,  and  there  is  no  cer- 
tainty he  would  take  advantage  of  it,  and  the  court  cannot  presume 
that  he  will  not  pay  an  honest  debt.  But  the  son  did  not  pay  the  de- 
mand when  due.  The  plaintiffs  therefore  sustained  the  loss  of  which 
they  complain,  by  reason  of  the  false  representation;  and  the  injury 
being  complete,  the  cause  of  action  accrued  without  prosecuting  a  suit 
against  the  son.  And,  supposing  the  question  turned  on  the  point 
whether  the  plaintiff  had  used  due  diligence  to  collect  the  demand  of 
the  son,  then  it  might  well  be  replied  that  when  the  plaintiffs  came  to 
the  knowledge  of  the  fact  that  the  son  was  a  minor,  and  applied  to  the 
father  for  a  settlement,  he  refused  to  pay  the  debt,  and  informed  them 
that  his  son  had  gone  to  sea  on  a  whaling  voyage.  If,  therefore,  the 
plaintiffs  had  been  bound  to  pursue  the  son  in  the  first  instance — as  we 
think  they  were  not — still  this  state  of  facts  would  have  justified  them 
in  not  prosecuting  the  son  before  looking  to  the  father  for  redress ;  nor 
does  it  call  on  them  to  await  his  return,  ad  vana  seu  impossibilia  non 
cogit  lex.  The  jury  then  having  established  the  fraud  and  deceit  on 
the  part  of  the  defendant,  and  the  damage  to  the  plaintiffs,  the  motion 
to  set  aside  the  verdict  is  overruled. 
Judgment  on  the  verdict. 


II.  Intent  to  Cause  Action  • 


HENRY  v.  DENNIS. 

(Supreme  Judicial  Court  of  Maine,  1901.    95  Me.  24,  49  Atl.  58,  85  Am.  St. 

Rep.  365.) 


,,  C.  J.e  For  some  time  prior  to  May  1,  1896,  Henry,  the 
plaintiff  in  one  of  these  suits,  had  been  engaged  in  the  wool  business 
alone,  under  the  name  of  W.  S.  Henry,  Jr.,  &  Co.  On  that  day  he 
formed  a  copartnership  in  the  same  business  with  one  Charles  C. 
Parsons,  and  the  business  was  subsequently  carried  on  in  the  firm  name 
of  Henry  &  Parsons.  But  after  the  formation  of  the  firm  Mr.  Henry 
continued  his  individual  business,  in  the  name  of  W.  S.  Henry,  Jr., 
&  Co.,  to  the  extent  of  selling  from  time  to  time  a  quantity  of  wool 
which  he  had  on  hand  at  the  time  of  the  formation  of  the  copartner- 
ship. 

On  August  15,  1896,  after  the  formation  of  the  firm  of  Henry  & 
Parsons,  but  while  Mr.  Henry  was  still  selling  on  his  own  account 
the  wool  which  he  previously  had  on  hand  and  which  had  not  been 

5  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88(2). 

«  The  statement  of  facts  except  as  contained  in  the  opinion  is  omitted. 


INTENT  TO   CAUSE   ACTION  213 

turned  over  to  the  firm,  Henry  wrote  a  letter  to  the  Gardiner  Woolen 
Company,  in  which  he  referred  to  an  order  for  wool  just  received 
and  in  which  he  says :  "At  Mr.  W.  D.  Eaton's  request  we  sent  you  the 
little  lot  without  any  knowledge  of  your  financial  standing,  but  if  we 
are  to  continue  to  ship  you  wool  on  60  days'  time,  we  feel  justified  in 
informing  ourselves  in  that  respect  and  we  presume  that  you  would 
prefer  to  have  us  inquire  directly  of  you  than  of  outside  parties. 
*  *  *  \yili  yOU  kindly  favor  us  with  full  particulars  which  we  trust 
will  warrant  a  continuation  of  our  business  relations  to  our  mutual 
benefits."  This  letter  was  dictated  by  Mr.  Henry,  as  shown  by  the 
letter,  but  was  signed  in  the  name  of  W.  S.  Henry,  Jr.,  &  Co. 

In  reply  to.  this  letter  of  inquiry,  the  defendant,  to  whom  the  letter 
was  turned  over  for  reply,  under  date  of  August  24,  1896,  wrote  a 
letter  directed  to  W.  S.  Henry  &  Co.,  which,  it  is  claimed,  contained 
false  and  material  representations  as  to  the  financial  standing  and 
condition  of  the  Gardiner  Woolen  Company,  which  were  subsequently 
acted  upon  by  Mr.  Henry,  both  individually  and  as  a  member  of  the 
firm  of  Henry  &  Parsons,  by  making  sales  to  the  Woolen  Company 
on  credit,  upon  his  own  account  and  upon  that  of  the  firm.  The 
plaintiffs,  Henry  in  one  case  and  Henry  &  Parsons  in  the  other,  being 
unable  to  collect  of  the  Woolen  Company  the  amounts  due  them,  be- 
cause of  its  insolvency,  brought  these  two  actions  to  recover  for  the 
injuries  sustained  by  them  by  reason  of  the  alleged  misrepresentations 
of  the  defendant. 

The  two  cases  were  tried  together,  and  the  jury  found  against  the 
defendant  in  both  cases.  The  only  question  now  presented  by  the 
exceptions  is  whether  or  not  the  representations  contained  in  the  de- 
fendant's letter  directed  to  W.  S.  Henry  &  Co.  could  have  been  so 
acted  upon  and  relied  upon  by  Mr.  Henry  as  a  member  of  the  firm  of 
Henry  &  Parsons  that  the  defendant  would  be  liable  to  that  firm  for 
any  injury  sustained  by  it  on  account  thereof,  as  well  as  to  Henry 
individually  for  any  injury  sustained  by  him  for  the  same  reason. 

It  is  urged  in  behalf  of  the  defendant  that  he  should  not  be  and  is 
not  liable  to  the  firm  of  Henry  &  Parsons  for  any  misrepresentations 
contained  in  that  letter,  because  the  letter  was  not  directed  to  the  firm 
and  because  there  was  no  privity  between  it  and  the  defendant.  The 
case  shows  that  the  defendant  did  not  know  of  the  existence  of  Mr. 
Parsons  or  of  the  firm  of  Henry  &  Parsons.  But  Henry  was  the  active 
member  of  the  firm,  and  one  who  made  these  sales  upon  credit  to  the 
Woolen  Company,  and  the  jury  must  have  found  that  Henry  was  in- 
duced to  make  these  sales  upon  credit,  both  for  himself  and  for  the 
firm,  by  the  representations  contained  in  the  defendant's  letter,  and 
that  in  making  the  sales  and  in  extending  credit  to  the  company,  both 
individually  and  as  a  member  of  the  firm,  he  relied  upon  these  repre- 
sentations. 

No  authority  exactly  in  point  has  been  called  to  our  attention,  but  the 


214  FRAUD 

general  principles  relative  to  the  liability  of  a  person  for  injuries 
caused  by  such  misrepresentations,  are  well  settled.  One  who  makes 
a  misrepresentation  must,  to  render  himself  liable,  have  made  it  with 
the  intention  that  it  should  be  acted  upon  by  the  person  to  whom  it 
is  made  or  by  one  to  whom  he  intended  it  should  be  communicated, 
and  he  is  therefore  responsible  to  such  persons  only  as  it  was  intended 
for. 

It  is  a  general  rule  that  a  person  cannot  complain  of  false  repre- 
sentations, for  the  purpose  of  maintaining  an  action  of  deceit,  unless 
the  representations  were  either  made  directly  to  him,  with  the  inten- 
tion that  they  should  be  acted  upon  by  him,  or  made  to  another  per- 
son with  the  intention  that  they  should  be  communicated  to  him  and 
acted  upon  by  him.  A  representation  made  to  one  person  with  the 
intention  that  it  shall  reach  the  ears  of  another  and  be  acted  upon  by 
him,  and  which  does  reach  him,  and  is  acted  upon  by  him  to  his  in- 
jury, gives  the  person  so  acting  upon  it  the  same  right  to  relief  or 
redress  as  if  it  had  been  made  to  him  directly.  Am.  &  Eng.  Encyc. 
of  Law  (2d  Ed.)  vol.  14,  pp.  148  and  149,  and  cases  there  cited.  See, 
also,  Hunnewell  v.  Duxbury,  154  Mass.  286,  28  N.  E.  267,  13  L.  R. 
A.  733;  Nash  v.  Minn.  Title  Ins.  &  Trust  Co.,  159  Mass.  437,  34 
N.  E.  625. 

Applying  these  general  principles  to  the  particular  question  here 
involved,  we  think  that  the  defendant  is  liable  to  the  firm  for  such 
injury  as  it  suffered  in  consequence  of  the  misrepresentations  contained 
in  his  letter,  whereby  the  firm  was  induced  to  make  sales  of  its  goods 
to  the  Woolen  Company  upon  credit.  The  answer  of  the  defendant 
to  the  letter  of  inquiry  was  directed  to  a  firm;  its  object  was  to  ob- 
tain credit  for  the  Woolen  Company  from  a  firm  of  which  Henry  was 
a  member.  True,  the  defendant  did  not  know  that  Parsons  was  as- 
sociated in  business  with  Henry,  nor  did  he  know,  so  far  as  the  case 
shows,  that  Henry  was  also  doing  business  alone  under  a  firm  name. 
But  he  must  have  contemplated  that  the  contents  of  this  letter  would 
either  be  communicated  to  other  members  of  any  firm  of  which  Henry 
was  a  partner,  in  that  business,  and  be  acted  upon  by  the  firm,  or 
that  Henry,  acting  for  a  firm,  would  be  induced  by  his  letter  to  give 
credit  to  the  Woolen  Company.  The  letter  was  not  only  intended  for 
Henry,  but  as  well  for  those  associated  with  him  in  that  business. 

It  is  of  no  consequence  that  the  letter  was  directed  to  W.  S.  Henry 
&  Co.,  when  it  was  in  fact  relied  upon  by  Henry  as  a  member  of  the 
firm  of  Henry  &  Parsons.  It  is  not  necessary,  in  order  for  a  defend- 
ant to  be  liable  for  the  consequences  of  his  misrepresentations,  that 
he  should  know  the  names  of  the  persons  to  whom  the  misrepresenta- 
tions may  be  communicated,  provided  he  contemplated  that  they  should 
be  communicated  to  others  and  be  acted  upon  by  them. 

Here,  as  the  case  shows,  Henry,  to  whom  the  misrepresentation  was 
directly  made,  was  induced  thereby,  as  a  member  of  the  firm  of  Henry 


ACTION   BY   COMPLAINANT  215 

&  Parsons,  to  sell  the  firm's  goods  on  credit,  and  thereby  the  firm  suf- 
fered.   This  is  precisely  what  was  within  the  intention  of  the  defend- 
ant;  he  is  consequently  liable  therefor.    This  result  is  in  accordance 
with  the  ruling  of  the  court  at  the  trial. 
Exceptions  overruled. 


III.  Action  by  Complainant1 


FOTTLER  v.  MOSELEY. 
(Supreme  Judicial  Court  of  Massachusetts,  1901.    179  Mass.  295,  60  N.  E.  788.) 

Tort  for  deceit,  alleging  that,  relying  upon  false  and  fraudulent 
representations  of  the  defendant,  a  broker,  that  certain  sales  of  stock 
of  the  Franklin  Park  Land  Improvement  Company  in  the  Boston 
Stock  Exchange  from  January  1  to  March  27,  1893,  were  genuine 
transactions,  the  plaintiff  revoked  an  order  for  the  sale  of  certain 
shares  of  that  stock  held  for  him  by  the  defendant,  whereby  the  plain- 
tiff suffered  loss.  Writ  dated  February  17,  1896. 

At  the  trial  in  the  Superior  Court,  Hopkins,  J.,  at  the  close  of  the 
evidence,  directed  the  jury  to  return  a  verdict  for  the  defendant. 
The  verdict  was  returned  as  directed ;  and  the  plaintiff  alleged  excep- 
tions. The  findings  warranted  by  the  evidence  are  stated  in  the  opin- 
ion of  this  court. 

Besides  the  facts  stated  in  the  opinion,  the  following  facts  appeared 
in  evidence:  During  the  time  in  question,  and  for  some  time  before, 
the  plaintiff  had  been  in  the  habit  of  buying  and  selling  stocks  through 
the  defendant  as  a  broker;  and  in  January,  1891,  the  defendant,  at  the 
request  of  the  plaintiff,  agreed  to  carry  for  him,  on  margin,  three 
hundred  shares  of  Franklin  Park  Land  &  Improvement  Company 
stock,  which  the  plaintiff  bought  of  one  Moody  Merrill.  It  appeared 
that  Merrill  had  been  an  acquaintance  of  the  plaintiff  since  1880  or 
1881 ;  that  the  plaintiff  and  Merrill  were  codirectors  of  the  Franklin 
Park  Land  &  Improvement  Company  from  June,  1891,  till  June,  1893, 
and  were  also  codirectors  in  another  corporation;  that  Merrill  was 
president  of  the  Highland  Street  Railway  Company,  was  a  man  well 
known  in  Boston  and  of  good  reputation  until  he  absconded  in  June, 
1893,  when  the  Franklin  Park  stock  became  of  little  or  no  value;  that 
after  1892  Merrill  and  the  plaintiff  bought  and  sold  stocks  on  joint 
account  through  the  defendant. 

HAMMOND,  J.  The  parties  to  this  action  testified  in  flat  contradic- 
tion of  each  other  on  many  of  the  material  issues,  but  the  evidence  in 
behalf  of  the  plaintiff  would  warrant  a  finding  by  the  jury  that  on 

7  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88  (3). 


216  FRAUD 

March  25,  1893,  the  plaintiff,  being  then  the  owner  of  certain  shares 
of  stock  in  the  Franklin  Park  Land  Improvement  Company,  gave  an 
order  to  the  defendant,  a  broker,  who  was  carrying  the  stock  for  him 
on  a  margin,  to  sell  it  at  a  price  not  less  than  $28.50  per  share;  that 
on  March  27th  the  defendant,  for  the  purpose  of  inducing  the  plain- 
tiff to  withdraw  the  order  and  refrain  from  selling,  represented  to  the 
plaintiff  that  the  sales  which  had  been  made  of  said  stock  in  the  mar- 
ket had  all  been  made  in  good  faith  and  had  been  "actual  true  sales 
throughout"  that  these  statements  were  made  as  of  personal  knowl- 
edge of  the  defendant,  and  that  the  plaintiff  believing  them  to  be  true 
and  relying  upon  them  was  thereby  induced  to  and  did  cancel  his  oral 
order  to  the  defendants  to  sell  and  did  refrain  from  selling,  and  that 
the  statements  were  not  true  as  to  some  of  the  sales  in  the  open  mar- 
ket of  which  the  last  was  in  December,  1892,  and  that  the  defendant 
knew  it  at  the  time  he  made  the  representations.  The  evidence  would 
warrant  a  further  finding  that  in  continuous  reliance  upon  such  repre- 
sentations the  plaintiff  kept  his  stock  when  he  otherwise  would  have 
sold  it  until  the  following  July,  when  its  market  value  depreciated,  and 
he  thereby  suffered  loss.  The  defendant,  protesting  that  he  made  no 
such  representation  and  that  the  jury  would  not  be  justified  in  finding 
that  he  had,  says  that  even  upon  such  a  finding  the  plaintiff  would  have 
no  case.  He  contends  that  the  representation  was  not  material,  that 
a  false  representation,  to  be  material,  must  not  only  induce  action,  but 
must  be  adequate  to  induce  it  by  offering  a  motive  sufficient  to  influence 
the  conduct  of  a  man  of  average  intelligence  and  prudence,  and  that 
in  this  case  the  representation  complained  of,  so  far  as  it  was  false, 
was  not  adequate  to  induce  action,  because  the  fictitious  sales  were  so 
few  and  distant  in  time,  and  that  therefore  it  was  not  material. 

It  may  be  assumed  that  the  plaintiff  desired  to  handle  his  stock  in 
the  manner  most  advantageous  to  himself,  and  that  the  question 
whether  he  would  withdraw  his  order  to  sell  was  dependent,  somewhat 
at  least,  upon  his  view  of  the  present  or  future  market  value  of  the 
stock;  and  upon  that  question  a  man  of  ordinary  intelligence  or  pru- 
dence would  consider  whether  the  reported  sales  in  the  market  were 
"true  sales  throughout,"  or  were  fictitious  and  what  was  the  extent  of 
each.  It  is  true  that  a  corporation  may  be  of  so  long  standing  and  of 
such  a  nature  and  the  number  of  the  shares  so  great  and  the  daily 
sales  of  the  stock  in  the  open  market  so  many  and  heavy  that  the 
knowledge  that  a  certain  percentage  of  the  sales  reported  are  not  ac- 
tual business  transactions  would  have  no  effect  upon  the  conduct  of  an 
ordinary  man.  On  the  other  hand,  a  corporation  may  be  so  small  and 
of  such  a  nature  and  have  so  slight  a  hold  upon  the  public  and  the 
number  of  its  shares  may  be  so  small  and  the  buyers  so  few  that  the 
question  whether  certain  reported  sales  are  fictitious  may  have  a  very 
important  bearing  upon  the  action  of  such  a  man.  Upon  the  evidence 
in  this  case  we  cannot  say,  as  matter  of  law,  that  the  representation  so 
far  as  false  was  not  material.  This  question  is  for  the  jury,  who  are 


ACTION    BY    COMPLAINANT  217 

to  consider  it  in  the  light  of  the  nature  of  the  corporation  and  its  stand- 
ing in  the  market,  and  the  other  matters  including  such  as  those  of 
which  we  have  spoken. 

It  is  further  urged  by  the  defendant  that  one  of  the  fundamental 
principles  in  a  suit  like  this  is  that  the  representation  should  have  been 
acted  upon  by  the  complaining  party  and  to  his  injury;  that  at  most 
the  plaintiff  simply  refrained  from  action,  and  that  "refraining  from 
action  is  not  acting  upon  representation"  within  the  meaning  of  the 
rule;  and,  further,  that  it  is  not  shown  that  the  damages,  if  any,  suf- 
fered by  the  plaintiff  are  the  direct  result  of  the  deceit. 

Fraud  is  sometimes  defined  as  the  "deception  practiced  in  order  to 
induce  another  to  part  with  property  or  to  surrender  some  legal  right," 
Cooley,  Torts  (2d  Ed.)  555,  and  sometimes  as  the  deception  which 
leads  "a  man  into  damage  by  willfully  or  recklessly  causing  him  to  be- 
lieve and  act  on  a  falsehood,"  Pollock  Torts  (Webb's  Ed.)  348,  349. 
The  second  definition  seems  to  be  more  comprehensive  than  the  first 
(see  for  instance  Barley  v.  Walford,  9  Q.  B.  197,  and  Butler  v.  Wat- 
kins,  13  Wall.  456,  20  L.  Ed.  629),  and  while  the  authorities  establish- 
ing what  is  a  cause  of  action  for  deceit  are  to  a  large  extent  converti- 
ble with  those  which  define  the  right  to  rescind  a  contract  for  fraud 
or  misrepresentation  and  the  two  classes  of  cases  are  generally  cited 
without  any  express  discrimination,  still  discrimination  is  sometimes 
needful  in  the  comparison  of  the  two  classes  of  cases.  Pollock,  Torts 
(Webb's  Ed.)  352. 

It  is  true  that  it  must  appear  that  fraud  should  have  been  acted 
upon.  It  is  a  little  difficult  to  see  precisely  what  is  meant  by  the  con- 
tention that  "refraining  from  action  is  not  acting  upon  representation." 
If  by  refraining  from  action  it  is  meant  simply  that  the  person  de- 
frauded makes 'no  change,  but  goes  on  as  he  has  been  going  and  would 
go  whether  the  fraud  had  been  committed  or  not,  then  the  proposition 
is  doubtless  true.  Such  a  person  has  been  in  no  way  influenced,  nor 
has  his  conduct  been  in  any  way  changed,  by  the  fraud.  He  has  not 
acted  in  reliance  upon  it.  If,  however,  it  is  meant  to  include  the  case 
where  the  person  defrauded  does  not  do  what  he  intended  and  started 
to  do  and  would  have  done  save  for  the  fraud  practiced  upon  him, 
the  proposition  cannot  be  true.  So  far  as  respects  the  owner  of  prop- 
erty, his  change  of  conduct  between  keeping  the  property  on  the  one 
hand  and  selling  it  on  the  other  is  equally  great  whether  the  first  in- 
tended action  be  to  keep  or  to  sell ;  and  if  by  reason  of  fraud  practiced 
upon  him  the  plaintiff  was  induced  to  recall  his  order  to  sell  and  be- 
ing continuously  under  the  influence  of  this  fraud,  kept  his  stock 
when,  save  for  such  fraud,  he  would  have  sold  it,  then  with  reference 
to  this  property  he  has  acted  upon  the  representation  within  the  mean- 
ing of  the  rule  as  applicable  to  cases  like  this.  Barley  v.  Walford,  9 
Q.  B.  197 ;  Butler  v.  Watkins,  13  WTall.  456,  20  L.  Ed.  629. 

The  cases  of  Lamb  v.  Stone,  11  Pick,  527,  Wellington  v.  Small,  3 
Cush.  145,  50  Am.  Dec.  719,  and  Bradley  v.  Fuller,  118  Mass.  239, 


218  FRAUD 

upon  which  the  defendant  relies,  are  not  authorities  for  the  proposi- 
tion "that  refraining  from  action  is  not  acting  upon  representation." 

As  to  whether  the  loss  suffered  by  the  plaintiff  is  legally  attributable 
to  the  fraud,  much  can  be  said  in  favor  of  the  defendant,  and  a  ver- 
dict in  his  favor  on  this  as  well  as  on  other  material  points  might  be 
the  one  most  reasonably  to  be  expected  upon  the  evidence,  especially 
when  it  is  considered  that  during  the  years  1892  and  1893  the  plain- 
tiff was  a  director  in  the  company;  but  we  cannot  decide  the  ques- 
tion as  a  matter  of  law.  If  the  fraud  operated  on  the  plaintiff's  mind 
continuously  up  to  the  time  of  the  depreciation  of  the  stock  in  June, 
1893,  so  that  he  kept  his  stock  when  otherwise  he  would  have  sold 
it  and  such  was  the  direct,  natural  and  intended  result,  then  we  think 
the  causal  relation  between  the  fraud  and  the  loss  is  sufficiently  made 
out.  See  Reeve  v.  Dennett,  145  Mass.  23,  29,  11  N.  E.  938. 

Exceptions  sustained. 


1.  DUTY  TO  INVESTIGATE  8 


JACOBSEN  v.  WHITELY. 
(Supreme  Court  of  Wisconsin,  1909.     138  Wis.  434,  120  N.  W.  285.) 

Action  for  damages  from  deceit.  The  plaintiff  claimed  that  he  was 
induced  to  buy  capital  stock  at  par  to  the  amount  of  $3,000  in  the 
Topliff  Dry  Goods  Company,  a  corporation  of  this  state,  by  fraudulent 
representations  of  the  defendants  to  the  effect  that  said  company  was 
doing  a  prosperous  business,  that  its  business  was  in  a  flourishing 
condition,  that  for  the  year  1904  it  made  a  net  profit  in  its  business 
of  over  $4,000  and  that  the  amount  of  its  indebtedness  was  about 
$19,000  and  its  assets  about  $50,000,  all  with  intent  to  induce  plaintiff 
to  buy  said  stock.  Evidence  was  introduced  of  the  making  of  said  rep- 
resentations, of  the  material  falsity  thereof,  of  the  extent  of  oppor- 
tunity and  ability  of  the  plaintiff  to  ascertain  such  falsity  before  the 
purchase  of  said  stock,  and  also  a  large  amount  of  testimony  of  his 
opportunity  to  learn  the  same  after  he  had  purchased  it  and  before 
commencing  suit,  during  a  part  of  which  period  he  continued  in  the 
employ  of  said  corporation  at  $25  per  week,  and  was  also  a  director 
and  stockholder  therein.  The  making  of  fraudulent  representations 
was  also  put  in  issue  both  by  the  pleadings  and  the  evidence.  At  the 
close  of  the  trial  the  court  entered  judgment  of  nonsuit,  from  which 
the  plaintiff  appeals. 

DODGE,  J.  As  this  case  went  off  on  nonsuit  at  the  close  of  the 
plaintiff's  evidence,  it  was  only  necessary  to  inquire  whether  there 
was  any  credible  evidence  which,  taken  with  all  intendments  and  rea- 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88. 


ACTION   BY  COMPLAINANT  219 

sonable  inferences  most -favorably  to  the  plaintiff,  tended  to  establish 
the  cause  of  action.  It  is  undeniable  that  there  was  evidence  that  the 
defendants  represented  to  the  plaintiff  that  the  corporation  had  assets 
of  about  $50,000;  that  its  debts  were  only  about  $19,000;  that  it 
was  doing  a  prosperous  business  and  earned  a  substantial  profit  the 
preceding  year;  also  that  each  of  those  statements  was  false;  that 
plaintiff  relied  upon  them;  and  that  the  stock  purchased  was  of  less 
value  than  if  the  facts  stated  had  been  true.  Materiality  of  such  rep- 
resentations to  the  making  of  the  contract  cannot  well  be  doubted. 
We  presume,  however,  the  court's  reason  for  entering  the  nonsuit 
was,  as  counsel  for  respondents  argues,  that  plaintiff  had  full  oppor- 
tunity for  knowing  the  falsity  of  the  representations  made  to  him 
before  he  purchased,  and  therefore  could  not  and  did  not  rely  upon 
their  truth. 

The  rule  of  law  is  well  established  that  a  purchaser  is  not  justified 
in  relying  upon  the  statements  of  the  seller  when  their  falsity  is  ob- 
vious to  him,  but  this  does  not  require  that  he  shall  meet  every  posi- 
tive statement  with  incredulity  and  must  search  to  ascertain  whether 
it  is  false.  The  law  recognizes  the  duty  of  each  to  refrain  from  even 
attempted  deceit  of  another  with  whom  he  deals,  and  the  right  of  the 
latter  to  assume  that  he  will  do  so.  It  is  an  unsavory  defense  for  a 
man  who  by  false  statements  induces  another  to  act  to  assert  that  if 
the  latter  had  disbelieved  him  he  would  not  have  been  injured.  Mc- 
Clellan  v.  Scott,  24  Wis.  81,  86;  Tyner  v.  Cotter,  67  Wis.  482,  491, 
30  N.  W.  782.  Nevertheless  courts  will  refuse  to  act  for  the  relief  of 
one  claiming  to  have  been  misled  by  another's  statements  who  blindly 
acts  in  disregard  of  knowledge  of  their  falsity,  or  with  such  oppor- 
tunity that  by  the  exercise  of  ordinary  observation,  not  necessarily 
by  search,  he  would  have  known.  He  may  not  close  his  eyes  to  what 
is  obviously  discoverable  by  him.  Northern  S.  Co.  v.  Wangard,  117 
Wis.  624,  94  N.  W.  785,  98  Am.  St.  Rep.  963 ;  Kaiser  v.  Nummerdor, 
120  Wis.  234,  97  N.  W.  932,  and  cases  there  cited ;  Miller  v.  Hack- 
barth,  126  Wis.  50,  52,  105  N.  W.  311.  It  is  in  this  sense  only  that 
opportunity  to  know  the  truth  will  prevent  recovery  for  deceit. 
Whether  the  situation  presents  or  fails  to  present  such  opportunity  is 
usually  a  question  of  fact.  The  intelligence  or  acuteness  of  plaintiff 
is  one  important  element.  Barndt  v.  Frederick,  78  Wis.  1,  11,  47  N. 
W.  6,  11  L.  R.  A.  199;  Bowe  v.  Gage,  127  Wis.  245,  246,  106  N.  W. 
1074,  115  Am.  St.  Rep.  1010.  Another  is  the  reliance  reposed  by  the 
buyer  on  the  seller  by  reason  of  acquaintance  or  confidence.  These 
and  many  other  considerations  have  proper  effect  in  deciding  whether 
the  truth  was  obvious,  as  appears  in  the  various  cases  already  cited 
and  very  many  others.  Lockwood  v.  Allen,  113  Wis.  474,  89  N. 
W.  492;  Bostwick  v.  Mut.  L.  Ins.  Co.,  116  Wis.  392,  89  N.  W.  538, 
92  N.  W.  246,  67  L.  R.  A.  705;  Mannel  v.  Shafer,  135  Wis.  241,  115 


220  FRAUD 

N.  W.  801 ;  King  v.  Graef,  136  Wis.  548,  117  N.  W.  1058,  20  L.  R.  A. 
(N.  S.)  86,  128  Am.  St.  Rep.  1101. 

In  the  light  of  these  principles,  let  us  examine  the  evidence,  at  least 
in  its  tendency.  The  opportunities  claimed  to  have  been  enjoyed  by 
the  plaintiff  from  which,  it  is  asserted,  he  must  have  known  of  the 
falsity  of  the  statements  made  to  him  are  a  visit  to  the  store,  with 
opportunity  to  observe  the  stock  in  trade  and  to  examine  the  books. 
With  reference  to  the  first  we  think  it  entirely  open  to  inference 
whether  mere  observation  of  a  dry  goods  store  which,  according  to 
defendants'  evidence  contained  from  $38,000  to  $40,000  worth  of 
varied  stock,  would  have  made  obvious  to  the  plaintiff  the  impossi- 
bility of  the  total  assets  of  the  company  equaling  $50,000.  We  appre- 
hend that  no  one  without  a  careful  examination  how  boxes  and  drawers 
were  filled  and  whether  with  the  more  or  less  valuable  kinds  of 
stock,  could  form  even  an  estimate  within  twenty-five  per  cent,  of  the 
fact,  besides  which,  of  course,  such  observation  would  give  no  light 
whatever  on  the  amount  of  the  accounts  receivable,  which  were  out- 
standing and  which  of  course  constituted  assets. 

As  to  the  books  which  were  in  evidence,  they  are  voluminous  set 
of  double-entry  books,  covering  all  the  details  of  purchases  from  day 
to  day  and  of  petty  sales  in  a  retail  business.  They  consist  of  a  ledger 
of  nearly  600  pages,  containing  approximately  450  different  accounts, 
several  of  which  extend  over  many  pages,  not  consecutively,  but 
scattered  throughout  the  book,  without  complete  reference  to  each 
page  in  any  index.  The  books  and  designation  of  the  general  ac- 
counts of  the  business  are  highly  artificial  and  capable  of  giving  or 
withholding  information  according  as  the  examiner  was  familiar  with 
the  system  of  bookkeeping  and  also  with  the  key  to  the  exact  meaning 
of  the  several  accounts.  For  example,  the  merchandise  account  was 
closed  in  January,  1905,  with  an  entry  indicating  a  gross  profit  on 
merchandise  of  some  $9,000.  Of  course,  a  skilled  bookkeeper  would 
have  understood  that  this  apparent  profit  was  subject  to  various  de- 
ductions, but  primarily  for  expense.  Had  he  turned  to  the  expense 
account,  he  would  have  found  that  to  amount  to  but  $2,600,  but  he 
would  not  have  discovered  that  various  classes  of  expenditures  were 
not  included  under  the  caption  "expense,"  such  as  salaries  and  wages, 
insurance,  advertising — each  of  considerable  amount.  Thus,  unless 
familiar  not  only  with  the  theory  of  double-entry  bookkeeping,  but 
with  the  meaning  in  which  the  bookkeeper  used  the  titles  to  the  ac- 
counts, he  might  have  been  deluded  into  an  understanding  that  much 
profits  had  been  made.  True,  the  profit  and  loss  account  would  not 
have  shown  any  net  profit,  but  in  order  that  he  must  be  charged  with 
notice  of  the  profit  and  loss  account  it  must  appear  that  he  had  knowl- 
edge of  any  such  general  balance  account,  which  by  the  way  is  usually 
a  characteristic  of  double-entry  bookkeeping  in  form  at  least.  Two 
of  the  witnesses  most  familiar  with  these  books  testified  that,  while 


ACTION   BY  COMPLAINANT  221 

the  facts  might  have  been  learned  from  them,  they  were  apparent  only 
to  a  skilled  bookkeeper — to  him  only  after  sufficient  critical  ex- 
amination to  master  the  individual  peculiarities.  There  was  evidence 
that  the  plaintiff  possessed  no  such  skill ;  that  he  had  no  familiarity  at 
all  with  double-entry  bookkeeping  or  with  its  theory ;  that  in  his  work 
as  a  dry  goods  clerk  he  had  learned  how  to  refer  to  certain  accounts 
upon  other  sets  of  books,  but  nothing  more.  It  seems  to  us,  therefore, 
that  the  jury  might  well  have  drawn  the  conclusion  that  these  books 
presented  to  him  an  incomprehensible  maze  of  figures  without  meaning 
or  significance,  such  as  to  blind  rather  than  enlighten. 

One  item  upon  which  defendants  dwell  is  the  "bills  payable"  ac- 
count, which  if  understood  would  have  shown  an  adverse  balance  of 
between  $21,000  and  $22,000  which  they  claim,  with  the  verbal  in- 
formation to  plaintiff  that  there  was  $9,000  of  indebtedness  in  addi- 
tion to  bills  payable,  as  the  fact  apparently  was,  at  once  informed  him 
that  the  indebtedness  was  as  much  as  the  fact  $32,000.  But  here 
again  a  key  to  the  bookkeeper's  terminology  was  essential  to  any 
such  deduction.  What  did  bills  payable  mean?  Did  it  include  or  ex- 
clude bills  owing  to  wholesale  merchants  for  goods?  The  representa- 
tion to  plaintiff  was  that  $10,000  was  owing  to  the  bank  and  about 
$9,000  to  such  merchants.  The  total  of  $21,000  of  the  bills  payable 
account  would  not  be  violently  variant  from  the  total,  and  on  the 
page  on  which  he  must  have  looked  it  would  have  been  apparent  to  a 
bookkeeper  that  at  least  one  $3,000  item  included  in  that  account  rep- 
resented indebtedness  to  J.  V.  Farwell  &  Co.,  well-known  wholesale 
merchants;  thus  justifying  an  idea  that  the  total  covered  not  only 
indebtedness  to  the  banks,  but  also  indebtedness  to  merchants. 

There  is  also  evidence  tending  to  prove  that  the  only  time  when 
plaintiff  sought  to  avail  himself  of  the  offered  privilege  of  examining 
the  books  he  was  accompanied  to  the  store  on  a  Sunday  by  one  of  the 
defendants,  who  spread  certain  books  upon  a  desk  and  then  told  him 
that  he  knew  nothing  about  the  bookkeeping  and  could  not  explain  its 
meaning,  whereby  plaintiff  was  unable  to  gain  any  information  there- 
from. The  only  other  actual  exhibition  of  books  was  made  on  an 
evening  when  plaintiff  was  called  to  the  store  by  telephone  just  as 
he  was  retiring  for  the  night.  Books  were  spread  upon  the  table,  but 
all  three  defendants  were  present  and  entered  into  various  discussions 
with  plaintiff  and  with  each  other  as  to  the  details  of  an  arrangement 
by  which  he  should  come  into  the  corporation  the  extent  to  which  his 
name  might  be  helpful  and  to  which  he  should,  for  the  welfare  of 
the  concern,  have  managerial  prominence.  We  think  on  both  occa- 
sions there  was  evidence  from  which  the  jury  might  have  well  be- 
lieved not  only  that  no  adequate  opportunity  for  the  examination  nec- 
essary to  the  understanding  of  the  books  was  enjoyed  by  plaintiff,  but 
the  action  of  the  defendants  was  such  as  to  divert  him  therefrom. 

To  the  foregoing  facts  may  be  added  the  consideration  that  the 


222  FRAUD 

defendants  were  all  long-time  acquaintances  of  the  plaintiff,  some 
had  been  his  fellow  workmen  many  years  before,  and  a  considerable 
intimacy  of  friendship  had  been  maintained  between  them  for  a  long 
time.  Under  such  circumstances  it  has  often  been  held  that  a  positive 
assertion  of  a  fact  by  the  proposed  seller  may  be  thought  by  the  trier 
of  facts  a  sufficient  diversion  of  the  purchaser  from  availing  himself 
of  quite  obvious  opportunities  for  examination.  We  cannot  avoid 
the  conviction  that  the  inference  as  to  whether  o>r  not  the  falsity  of 
the  alleged  misrepresentations  was  so  apparent  to  the  plaintiff  that  he 
must  have  known  it,  by  the  exercise  of  that  care  and  observation  which 
a  person  of  ordinary  care  of  equal  intelligence  and  understanding 
would  have  exercised,  was  one  for  the  jury,  and  that  error  was  com- 
mitted in  granting  the  nonsuit.  *  *  *  9 

BY  THE  COURT.    Judgment  reversed,  and  cause  remanded  for  new 
trial. 


IV.  Falsity10 


LOMERSON  v.  JOHNSTON. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1890.    47  N.  J.  Eq.  312,  20  AtL 
675,  24  Am.  St.  Rep.  410.) 

GARRISON,  J.11  We  agree  with  the  learned  vice  chancellor  who 
heard  this  cause  in  all  his  conclusions  upon  the  testimony.  The  case 
shows,  in  the  clearest  manner  that  Lomerson,  the  appellant,  being  in- 
volved with  Mr.  Johnston  as  surety  and  indorser,  visited  Mrs.  Johns- 
ton for  the  purpose  of  securing  himself  against  loss  through  the  hus- 
band by  obtaining  from  the  wife  a  mortgage  upon  the  house  left  to 
her  by  her  father.  The  case  further  shows,  and  the  vice  chancellor 
so  finds,  that,  in  attaining  this  object,  Lomerson  made  to  Mrs.  Johns- 
ton a  number  of  statements,  all  tending  to  excite  in  her  mind  the  live- 
liest apprehensions  that  her  husband  was  about  to  be  lodged  in  jail 
for  debt.  The  court  of  chancery  by  its  decree  set  aside  the  mortgage 
thus  obtained,  considering  that  it  was  executed  under  a  species  of  du- 
ress. With  the  result  reached  we  agree,  resting  our  decision,  how- 
ever, upon  the  ground  that  it  is  inequitable  to  permit  the  complainant 
to  retain  a  security  for  the  husband's  debt  obtained  by  allowing  a 
false  apprehension  as  to  the  husband's  danger  to  affect  the  mind  of  the 
wife.  That  this  apprehension  was  the  sole  consideration  for  the  wife's 
compliance  is  not  more  clear  than  that  the  efficient  element  of  that 

e  The  remainder  of  the  opinion  is  omitted. 

10  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88  (4). 

11  The  statement  of  facts  Is  omitted. 


SCIENTEE  223 

apprehension,  namely,  the  belief  in  the  imminence  of  the  anticipated 
arrest,  was  not  only  false,  but  was  so  to  the  knowledge  of  Lomerson. 

In  order  to  establish  a  case  of  false  representation  it  is  not  neces- 
sary that  something  which  is  false  should  have  been  stated  as  if  it 
were  true.  If  the  presentation  of  that  which  is  true  creates  an  im- 
pression which  is  false,  it  is,  as  to  him  who,  seeing  the  misapprehen- 
sion, seeks  to  profit  by  it,  a  case  of  false  representation.  In  the  pres- 
ent instance,  Mrs.  Johnston  naturally  gathered  from  the  statements 
made  to  her  by  Lomerson  that  her  husband  had  committed  crimes  for 
which  he  not  only  could  and  would  be  imprisoned,  but  that  his  arrest 
was  at  hand.  The  imminence  of  the  danger  was  the  sole  motive  for 
the  execution  of  the  mortgage.  In  any  other  view  of  the  transaction 
her  haste  is  incomprehensible.  Notwithstanding  the  importance  of 
the  demand  made  upon  her,  she  took  no  time  to  reflect,  held  no  con- 
sultation with  her  friends,  sought  no  advice.  Her  one  object  was  to 
act  quickly — to  be  beforehand.  And  yet  this  notion  of  the  imminence 
of  her  husband's  arrest  was  just  the  one  part  of  the  impression  pro- 
duced upon  her  mind  by  Lomerson's  statements,  which  was  false,  and 
which  he  knew  to  be  false.  From  this  time  on  the  case  becomes  one 
of  false  representation,  not  because  falsehoods  were  stated  as  if  they 
were  facts,  but  because  the  state  of  mind  produced  falsely  represented 
the  facts.  To  take  advantage  of  such  a  state  of  mind  is  to  profit  by  a 
false  representation. 

The  decree  below  is  affirmed,  with  costs. 

For  affirmance — The  CHIEF  JUSTICE,  DIXON,  GARRISON,  MAGIE, 
REED,  SCUDDER,  VAN  SYCKEL,  BROWN,  CLEMENT,  COLE,  SMITH, 
WHITAKER. 

For  reversal — None. 


V.  Scienter" 


DERRY  v.  PEEK. 
(House  of  Lords,  1889. »  14  App.  Gas.  337.) 

Appeal  from  a  decision  of  the  Court  of  Appeal.  The  facts  are  set 
out  at  length  in  the  report  of  the  decisions  below,  37  Ch.  D.  541.  For 
the  present  report  the  following  summary  will  suffice: 

By  a  special  act  (45  &  46  Viet.  c.  159)  the  Plymouth,  Devonport  & 
District  Tramways  Company  was  authorized  to  make  certain  tram- 
ways. 

By  section  35  the  carriages  used  on  the  tramways  might  be  moved 
by  animal  power  and,  with  the  consent  of  the  Board  of  Trade,  by 

12  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88  (5). 


224 "  FRAUD 

steam  or  any  mechanical  power  for  fixed  periods  and  subject  to  the 
regulations  of  the  Board. 

By  section  34  of  the  Tramways  Act  1870  (33  &  34  Viet.  c.  78), 
which  section  was  incorporated  in  the  said  special  act,  "all  carriages 
used  on  any  tramway  shall  be  moved  by  the  power  prescribed  by  the 
special  act,  and  where  no  such  power  is  prescribed,  by  animal  power 
only." 

In  February,  1883,  the  appellants  as  directors  of  the  company  issued 
a  prospectus  containing  the  following  paragraph : 

"One  great  feature  of  this  undertaking,  to  which  considerable  im- 
portance should  be  attached,  is,  that  by  the  special  act  of  Parliament 
obtained,  the  company  has  the  right  to  use  steam  or  mechanical  mo- 
tive power,  instead  of  horses,  and  it  is  fully  expected  that  by  means 
of  this  a  considerable  saving  will  result  in  the  working  expenses  of 
the  line  as  compared  with  other  tramways  worked  by  horses." 

Soon  after  the  issue  of  the  prospectus  the  respondent,  relying,  as 
he  alleged,  upon  the  representations  in  this  paragraph  and  believing 
that  the  company  had  an  absolute  right  to  use  steam  and  other  mechan- 
ical power,  applied  for  and  obtained  shares  in  the  company. 

The  company  proceeded  to  make  tramways,  but  the  Board  of  Trade 
refused  to  consent  to  the  use  of  steam  or  mechanical  power  except 
on  certain  portions  of  the  tramways. 

In  the  result  the  company  was  wound  up,  and  the  respondent  in 
1885  brought  an  action  of  deceit  against  the  appellants  claiming  dam- 
ages for  the  fraudulent  misrepresentations  of  the  defendants  whereby 
the  plaintiff  was  induced  to  take  shares  in  the  company. 

At  the  trial  before  Stirling,  J.,  the  plaintiff  and  defendants  were 
called  as  witnesses.  The  effect  given  to  their  evidence  in  this  House 
will  appear  from  the  judgments  of  noble  and  learned  Lords. 

Stirling,  J.,  dismissed  the  action;  but  that  decision  was  reversed 
by  the  Court  of  Appeal  (Cotton,  L.  J.,  Sir  J.  Hannen,  and  Lopes,  L. 
J.),  who  held  that  the  defendants  were  liable  to  make  good  to  the 
plaintiff  the  loss  sustained  by  his  taking  the  shares,  and  ordered  an 
inquiry,  37  Ch.  D.  541,  591.  Against  this  decision  the  defendants  ap- 
pealed. 

Lord  HERSCHELiv.18  My  Lords  in  the  statement  of  claim  in  this 
action  the  respondent,  who  is  the  plaintiff,  alleges  that  the  appellants 
made  in  a  prospectus  issued  by  them  certain  statements  which  were 
untrue,  that  they  well  knew  that  the  facts  were  not  as  stated  in  the 
prospectus,  and  made  the  representations  fraudulently,  and  with  the 
view  to  induce  the  plaintiff  to  take  shares  in  the  company. 

"This  action  is  one  which  is  commonly  called  an  action  of  deceit,  a 
mere  common  law  action."  This  is  the  description  of  it  given  by  Cot- 
ton, L.  J.,  in  delivering  judgment.  I  think  it  important  that  it  should 

is  Parts  of  the  opinion  of  Lord  Herschell  and  all  of  the  concurring  opinions 
of  Lord  Chancellor  Halsbury  and  of  Lords  Bramwell,  Watsou  and  Fitzgerald 
are  omitted. 


SCIENTEB  225 

be  borne  in  mind  that  such  an  action  differs  essentially  from  one 
brought  to  obtain  rescission  of  a  contract  on  the  ground  of  misrepre- 
sentation of  a  material  fact.  The  principles  which  govern  the  two  ac- 
tions differ  widely.  Where  rescission  is  claimed  it  is  only  necessary 
to  prove  that  there  was  misrepresentation ;  then,  however  honestly  it 
may  have  been  made,  however  free  from  blame  the  person  who  made 
it,  the  contract,  having  been  obtained  by  misrepresentation,  cannot, 
stand.  In  an  action  of  deceit,  on  the  contrary,  it  is  not  enough  to  es- 
tablish misrepresentation  alone ;  it  is  conceded  on  all  hands  that  some- 
thing more  must  be  proved  to  cast  liability  upon  the  defendant,  though 
it  has  been  a  matter  of  controversy  what  additional  elements  are  req- 
uisite. I  lay  stress  upon  this  because  observations  made  by  learned 
judges  in  actions  for  rescission  have  been  cited  and  much  relied  upon 
at  the  bar  by  counsel  for  the  respondent.  Care  must  obviously  be 
observed  in  applying  the  language  used  in  relation  to  such  actions  to 
an  action  of  deceit.  Even  if  the  scope  of  the  language  used  extend 
beyond  the  particular  action  which  was  being  dealt  with  it  must  be  re- 
membered that  the  learned  judges  were  not  engaged  in  determining 
what  is  necessary  to  support  an  action  of  deceit,  or  in  discriminating 
with  nicety  the  elements  which  enter  into  it. 

There  is  another  class  of  actions  which  I  must  refer  to  also  for  the 
purpose  of  putting  it  aside.  I  mean  those  cases  where  a  person  with- 
in whose  special  province  it  lay  to  know  a  particular  fact,  has  given  an 
erroneous  answer  to  an  inquiry  made  with  regard  to  it  by  a  person 
desirous  of  ascertaining  the  fact  for  the  purpose  of  determining  his 
course  accordingly,  and  has  been  held  bound  to  make  good  the  assur- 
ance he  has  given.  Burrowes  v.  Lock,  10  Ves.  470,  may  be  cited  as  an 
example,  where  a  trustee  had  been  asked  by  an  intended  lender,  upon 
the  security  of  a  trust  fund,  whether  notice  of  any  prior  incumbrance 
upon  the  fund  had  been  given  to  him.  In  cases  like  this  it  has  been 
said  that  the  circumstance  that  the  answer  was  honestly  made  in  the 
belief  that  it  was  true  affords  no  defence  to  the  action.  Lord  Sel- 
borne  pointed  out  in  Brownlievv.  Campbell,  5  App.  Cas.  at  p.  935,  that 
these  cases  were  in  an  altogether  different  category  from  actions  to  re- 
cover damages  for  false  representation,  such  as  we  are  now  dealing 
with. 

One  other  observation  I  have  to  make  before  proceeding  to  consider 
the  law  which  has  been  laid  down  by  the  learned  judges  in  the  Court 
of  Appeal  in  the  case  before  your  Lordships.  "An  action  of  deceit  is  a 
common  law  action,  and  must  be  decided  on  the  same  principles, 
whether  it  be  brought  in  the  Chancery  Division  or  any  of  the  Common- 
Law  Divisions,  there  being,  in  my  opinion,  no  such  thing  as  an  equi- 
table action  for  deceit."  This  was  the  language  of  Cotton,  L.  J.,  in 
Arkwright  v.  Newbould,  17  Ch.  D.  320.  It  was  adopted  by  Lord 
Blackburn  in  Smith  v.  Chadwick,  9  App.  Cas.  193,  and  is  not,  I  think, 
open  to  dispute. 

CHAP. CAS. TOBTS — 15 


226  FRAUD 

In  the  Court  below  Cotton,  L.  J.,  said:  "What  in  my  opinion  is  a 
correct  statement  of  the  law  is  this,  that  where  a  man  makes  a  state- 
ment to  be  acted  upon  by  others  which  is  false,  and  which  is  known 
by  him  to  be  false,  or  is  made  by  him  recklessly,  or  without  care 
whether  it  is  true  or  false,  that  is,  without  any  reasonable  ground  for 
believing  it  to  be  true,  he  is  liable  in  an  action  of  deceit  at  the  suit  of 
any  one  to  whom  it  was  addressed  or  any  one  of  the  class  to  whom  it 
was  addressed  and  who  was  materially  induced  by  the  misstatement 
to  do  an  act  to  his  prejudice."  About  much  that  is  here  stated  there 
cannot,  I  think,  be  two  opinions.  But  when  the  learned  Lord  Justice 
speaks  of  a  statement  made  recklessly  or  without  care  whether  it  is 
true  or  false,  that  is  without  any  reasonable  ground  for  believing  it  to 
be  true,  I  find  myself,  with  all  respect,  unable  to  agree  that  these  are 
convertible  expressions.  To  make  a  statement  careless  whether  it  be 
true  or  false,  and  therefore  without  any  real  belief  in  its  truth,  appears 
to  me  to  be  an  essentially  different  thing  from  making,  through  want 
of  care,  a  false  statement,  which  is  nevertheless  honestly  believed  to 
be  true.  And  it  is  surely  conceivable  that  a  man  may  believe  that  what 
he  states  is  the  fact,  though  he  has  been  so  wanting  in  care  that  the 
Court  may  think  that  there  were  no  sufficient  grounds  to  warrant  his 
belief.  I  shall  have  to  consider  hereafter  whether  the  want  of  reason- 
able ground  for  believing  the  statement  made  is  sufficient  to  support 
an  action  of  deceit.  I  am  only  concerned  for  the  moment  to  point  out 
that  it  does  not  follow  that  it  is  so,  because  there  is  authority  for  say- 
ing that  a  statement  made  recklessly,  without  caring  whether  it  be 
true  or  false,  affords  sufficient  foundation  for  such  an  action.  *  *  * 

It  will  thus  be  seen  that  all  the  learned  judges  concurred  in  think- 
ing that  it  was  sufficient  to  prove  that  the  representations  made  were 
not  in  accordance  with  fact,  and  that  the  person  making  them  had  no 
reasonable  ground  for  believing  them.  They  did  not  treat  the  absence 
of  such  reasonable  ground  as  evidence  merely  that  the  statements  were 
made  recklessly,  careless  whether  they  were  true  or  false,  and  without 
belief  that  they  were  true,  but  they  adopted  as  the  test  of  liability,  not 
the  existence  of  belief  in  the  truth  of  the  assertions  made,  but  whether 
the  belief  in  them  was  founded  upon  any  reasonable  grounds.  It  will 
be  seen,  further,  that  the  court  did  not  purport  to  be  establishing  any 
new  doctrine.  They  deemed  that  they  were  only  following  the  cases 
already  decided,  and  that  the  proposition  which  they  concurred  in  lay- 
ing down  was  established  by  prior  authorities.  Indeed,  Lopes,  L.  J., 
expressly  states  the  law  in  this  respect  to  be  well  settled.  This  ren- 
ders a  close  and  critical  examination  of  the  earlier  authorities  neces- 
sary. 

I  need  go  no  further  back  than  the  leading  case  of  Pasley  v.  Free- 
man, 2  Smith's  L.  C.  74.  If  it  was  not  there  for  the  first  time  held 
that  action  of  deceit  would  lie  in  respect  of  fraudulent  representa- 
tions against  a  person  not  a  party  to  a  contract  induced  by  them,  the 


8CIENTER  227 

law  was  at  all  events  not  so  well  settled  but  that  a  distinguished  judge, 
Grose,  J.,  differing  from  his  brethren  on  the  bench,  held  that  such  an 
action  was  not  maintainable.  Buller,  J.,  who  held  that  the  action  lay, 
adopted  in  relation  to  it  the  language  of  Croke,  J.,  in  3  Bulstrode,  95, 
who  said :  "Fraud  without  damage  or  damage  without  fraud  gives  no 
cause  of  action,  but  where  these  two  concur  an  action  lies." 

Having  now  drawn  attention,  I  believe,  to  all  the  cases  having  a 
material  bearing  upon  the  question  under  consideration,  I  proceed  to 
state  briefly  the  conclusions  to  which  I  have  been  led.  I  think  the  au- 
thorities establish  the  following  propositions:  First,  in  order  to  sus- 
tain an  action  of  deceit,  there  must  be  proof  of  fraud,  and  nothing 
short  of  that  will  suffice.  Secondly,  fraud  is  proved  when  it  is  shewn 
that  a  false  representation  has  been  made  (1)  knowingly,  or  (2)  with- 
out belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be  true  or 
false.  Although  I  have  treated  the  second  and  third  as  distinct  cases, 
I  think  the  third  is  but  an  instance  of  the  second,  for  one  who  makes 
a  statement  under  such  circumstances  can  have  no  real  belief  in  the 
truth  of  what  he  states.  To  prevent  a  false  statement  being  fraudu- 
lent, there  must,  I  think,  always  be  an  honest  belief  in  its  truth.  And 
this  probably  covers  the  whole  ground,  for  one  who  knowingly  alleges 
that  which  is  false  has  obviously  no  such  honest  belief.  Thirdly,  if 
fraud  be  proved,  the  motive  of  the  person  guilty  of  it  is  immaterial. 
It  matters  not  that  there  was  no  intention  to  cheat  or  injure  the  per- 
son to  whom  the  statement  was  made. 

I  think  these  propositions  embrace  all  that  can  be  supported  by  de- 
cided cases  from  the  time  of  Pasley  v.  Freeman  down  to  Western 
Bank  of  Scotland  v.  Addie  in  1867,  Law  Rep.  1  H.  L.  Sc.  145,  when 
the  first  suggestion  is  to  be  found  that  belief  in  truth  of  what  he  has 
stated  will  not  suffice  to  absolve  the  defendant  if  his  belief  be  based 
on  no  reasonable  grounds.  I  have  shewn  that  this  view  was  at  once 
dissented  from  by  Lord  Cranworth  so  that  there  was  at  the  outset  as 
much  authority  against  it  as  for  it.  And  I  have  met  with  no  further 
assertion  of  Lord  Chelmsford's  view  until  the  case  of  Weir  v.  Bell, 
3  Ex.  D.  238,  where  it  seems  to  be  involved  in  Lord  Justice  Cotton's 
enunciation  of  the  law  of  deceit.  But  no  reason  is  there  given  in 
support  of  the  view;  it  is  treated  as  established  law.  The  dictum  of 
the  late  Master  of  the  Rolls  that  a  false  statement  made  through  care- 
lessness, which  the  person  making  it  ought  to  have  known  to  be  un- 
true, would  sustain  an  action  of  deceit,  carried  the  matter  still  fur- 
ther. But  that  such  an  action  could  be  maintained  notwithstanding  an 
honest  belief  that  the  statement  made  was  true,  if  there  were  no 
reasonable  grounds  for  the  belief,  was,  I  think,  for  the  first  time  de- 
cided in  the  case  now  under  appeal. 

In  my  opinion  making  a  false  statement  through  want  of  care  falls 
far  short  of,  and  is  a  very  different  thing  from,  fraud,  and  the  same 
may  be  said  of  a  false  representation  honestly  believed  though  on  in- 


228  FRAUD 

sufficient  grounds.  Indeed  Cotton,  L.  J.,  himself  indicated,  in  the 
words  I  have  already  quoted,  that  he  should  not  call  it  fraud.  But 
the  whole  current  of  authorities,  with  which  I  have  so  long  detained 
your  Lordships,  shews  to  my  mind  conclusively  that  fraud  is  essential 
to  found  an  action  of  deceit,  and  that  it  cannot  be  maintained  where 
the  acts  proved  cannot  properly  be  so  termed.  And  the  case  of  Taylor 
v.  Ashton,  11  M.  &  W.  401,  appears  to  me  to  be  in  direct  conflict  with 
the  dictum  of  Sir  George  Jessel,  and  inconsistent  with  the  view  taken 
by  the  learned  judges  in  the  court  below.  I  observe  that  Sir  Freder- 
ick Pollock,  in  his  able  work  on  Torts  (page  243,  note),  referring,  I 
presume,  to  the  dicta  of  Cotton,  L.  J.,  and  Sir  George  Jessel,  M.  R., 
says  that  the  actual  decision  in  Taylor  v.  Ashton,  11  M.  &  W.  401,  is 
not  consistent  with  the  modern  cases  on  the  duty  of  directors  of  com- 
panies. I  think  he  is  right.  But  for  the  reasons  I  have  given  I  am 
unable  to  hold  that  anything  less  than  fraud  will  render  directors  or 
any  other  persons  liable  to  an  action  of  deceit. 

At  the  same  time  I  desire  to  say  distinctly  that  when  a  false  state- 
ment has  been  made  the  questions  whether  there  were  reasonable 
grounds  for  believing  it,  and  what  were  the  means  of  knowledge  in 
the  possession  of  the  person  making  it,  are  most  weighty  matters  for 
consideration.  The  ground  upon  which  an  alleged  belief  was  found- 
ed is  a  most  important  test  of  its  reality.  I  can  conceive  many  cases 
where  the  fact  that  an  alleged  belief  was  destitute  of  all  reasonable 
foundation  would  suffice  of  itself  to  convince  the  court  that  it  was  not 
really  entertained,  and  that  the  representation  was  a  fraudulent  one. 
So,  too,  although  means  of  knowledge  are,  as  was  pointed  out  by  Lord 
Blackburn  in  Brownlie  v.  Campbell,  5  App.  Cas.  at  p.  952,  a  very  dif- 
ferent thing  from  knowledge,  if  I  thought  that  a  person  making  a  false 
statement  had  shut  his  eyes  to  the  facts,  or  purposely  abstained  from 
inquiring  into  them,  I  should  hold  that  honest  belief  was  absent,  and 
that  he  was  just  as  fraudulent  as  if  he  had  knowingly  stated  that 
which  was  false. 

I  have  arrived  with  some  reluctance  at  the  conclusion  to  which  I 
have  felt  myself  compelled,  for  I  think  those  who  put  before  the  pub- 
lic a  prospectus  to  induce  them  to  embark  their  money  in  a  commer- 
cial enterprise  ought  to  be  vigilant  to  see  that  it  contain  such  represen- 
tations only  as  are  in  strict  accordance  with  fact,  and  I  should  be  very 
unwilling  to  give  any  countenance  to  the  contrary  idea.  I  think  there 
is  much  to  be  said  for  the  view  that  this  moral  duty  ought  to  some 
extent  to  be  converted  into  a  legal  obligation,  and  that  the  want  of 
reasonable  care  to  see  that  statements,  made  under  such  circumstances, 
are  true,  should  be  made  an  actionable  wrong.  But  this  is  not  a  mat- 
ter fit  for  discussion  on  the  present  occasion.  If  it  is  to  be  done  the 
legislature  must  intervene  and  expressly  give  a  right  of  action  in  re- 
spect of  such  a  departure  from  duty.  It  ought  not,  I  think  to  be  done 
by  straining  the  law,  and  holding  that  to  be  fraudulent  which  the  tri- 
bunal feels  cannot  properly  be  so  described.  I  think  mischief  is  likely 


8CIENTER  229 

to  result  from  blurring  the  distinction  between  carelessness  and  fraud, 
and  equally  holding  a  man  fraudulent  whether  his  acts  can  or  cannot 
be  justly  so  designated. 

It  now  remains  for  me  to  apply  what  I  believe  to  be  the  law  to  the 
facts  of  the  present  case.  *  *  * 

I  agree  with  the  court  below  that  the  statement  made  did  not  ac- 
curately convey  to  the  mind  of  a  person  reading  it  what  the  rights  of 
the  company  were,  but  to  judge  whether  it  may  nevertheless  have  been 
put  forward  without  subjecting  the  defendants  to  the  imputation  of 
fraud,  your  Lordships  must  consider  what  were  the  circumstances. 
By  the  General  Tramways  Act  of  1870  it  is  provided  that  all  carriages 
used  on  any  tramway  shall  be  moved  by  the  power  prescribed  by  the 
special  act,  and  where  no  such  power  is  prescribed,  by  animal  power 
only.  33  &  34  Viet.  c.  78,  §  34.  In  order,  therefore,  to  enable  the 
company  to  use  steam  power,  an  act  of  Parliament  had  to  be  obtained 
empowering  its  use.  This  had  been  done,  but  the  power  was  clogged 
with  the  condition  that  it  was  only  to  be  used  with  the  consent  of  the 
Board  of  Trade.  It  was  therefore  incorrect  to  say  that  the  company 
had  the  right  to  use  steam ;  they  would  only  have  that  right  if  they 
obtained  the  consent  of  the  Board  of  Trade.  But  it  is  impossible  not 
to  see  that  the  fact  which  would  impress  itself  upon  the  minds  of  those 
connected  with  the  company  was  that  they  had,  after  submitting  the 
plans  to  the  Board  of  Trade,  obtained  a  special  act  empowering  the 
use  of  steam.  It  might  well  be  that  the  fact  that  the  consent  of  the 
Board  of  Trade  was  necessary  would  not  dwell  in  the  same  way  upon 
their  minds,  if  they  thought  that  the  consent  of  the  Board  would  be 
obtained  as  a  matter  of  course  if  its  requirements  were  complied  with 
and  that  it  was  therefore  a  mere  question  of  expenditure  and  care. 
The  provision  might  seem  to  them  analogous  to  that  contained  in  the 
General  Tramways  Act,  and  I  believe  in  the  Railways  Act  also,  pro- 
hibiting the  line  being  opened  until  it  had  been  inspected  by  the  Board 
of  Trade  and  certified  fit  for  traffic,  which  no  one  would  regard  as  a 
condition  practically  limiting  the  right  to  use  the  line  for  the  purpose 
of  a  tramway  or  railway.  I  do  not  say  that  the  two  cases  are  strictly 
analogous  in  point  of  law,  but  they  may  well  have  been  thought  so  by 
business  men. 

I  turn  now  to  the  evidence  of  defendants.  *  *  *  (Lord  Her- 
schell  here  reviewed  the  evidence  of  each  of  the  five  defendants.) 

As  I  have  said,  Stirling,  J.,  gave  credit  to  these  witnesses  and  I  see 
no  reason  to  differ  from  him.  What  conclusion  ought  to  be  drawn 
from  their  evidence?  I  think  they  were  mistaken  in  supposing  that 
the  consent  of  the  Board  of  Trade  would  follow  as  a  matter  of  course 
because  they  had  obtained  their  act.  It  was  absolutely  in  the  discre- 
tion of  the  Board  whether  such  consent  should  be  given.  The  prospec- 
tus was  therefore  inaccurate.  But  that  is  not  the  question.  If  they 
believed  that  the  consent  of  the  Board  of  Trade  was  practically  con- 


230  FRAUD 

eluded  by  the  passing  of  the  act,  has  the  plaintiff  made  out,  which  it 
was  for  him  to  do,  that  they  have  been  guilty  of  a  fraudulent  misrep- 
resentation? I  think  not.  I  cannot  hold  it  proved  as  to  any  one  of 
them  that  he  knowingly  made  a  false  statement,  or  one  which  he  did 
not  believe  to  be  true,  or  was  careless  whether  what  he  stated  was 
true  or  false.  In  short,  I  think  they  honestly  believed  that  what  they 
asserted  was  true,  and  I  am  of  opinion  that  the  charge  of  fraud  made 
against  them  has  not  been  established.  *  *  * 

Adopting  the  language  of  Jessel,  M.  R.,  in  Smith  v.  Chadwick,  20 
Ch.  D.  at  page  67,  I  conclude  by  saying  that  on  the  whole  I  have  come 
to  the  conclusion  that  the  statement,  "though  in  some  respects  inaccu- 
rate and  not  altogether  free  from  imputation  of  carelessness,  was  a 
fair,  honest  and  bona  fide  statement  on  the  part  of  the  defendants,  and 
by  no  means  exposes  them  to  an  action  for  deceit." 

I  think  the  judgment  of  the  Court  of  Appeal  should  be  reversed. 


VI.  Damage 


URTZ  v.  NEW  YORK  CENT.  &  H.  R.  R.  Co. 

(Court  of  Appeals  of  New  York,  1911.    202  N.  Y.  170,  95  N.  E.  711.) 

The  action  is  to  recover  the  damages  sustained  by  the  plaintiff 
through  the  false  representations  made  to  her  by  the  defendant. 

April  9,  1906,  the  plaintiff's  husband  and  intestate  was  killed  at  a 
highway  crossing  of  defendant's  railroad  through  a  collision  between 
an  engine  of  the  defendant  and  a  wagon  in  which  the  intestate  was  rid- 
ing. The  team  of  the  intestate  was  also  killed  and  his  wagon  demol- 
ished. One  McCormick  was  a  division  claim  agent  of  defendant,  and 
it  was  his  duty  to  investigate  the  accident  and  report  the  facts  to  its 
chief  claim  agent  with  his  opinion  as  to  its  liability.  He  investigated 
the  circumstances  surrounding  the  accident,  and  then  entered  upon  a 
series  of  misrepresentations  to  both  the  plaintiff  and  defendant.  The 
result  of  those  to  the  defendant  was  that  on  April  17,  1906,  he  was  au- 
thorized by  it  to  settle  with  the  plaintiff  on  the  best  terms  he  could 
within  the  sum  of  $2,500,  and  on  April  27th  the  defendant  forwarded 
to  him  its  check  for  $2,250,  payable  to  the  order  of  and  to  be  deliv- 
ered to  the  plaintiff  upon  the  execution  by  her  of  a  voucher  and  a 
general  release  of  her  claim.  On  April  30th  McCormick  told  the  plain- 
tiff that  he  had  looked  up  all  the  facts  and  talked  with  everybody  who 
knew  anything  about  the  case;  he  had  found  out  that  the  intestate 
was  drunk  and  when  a  man  told  him  that  the  train  was  coming  he  said 
he  could  take  care  of  himself,  and  he  didn't  care  whether  the  train  was 

i*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  88  (6). 


DAMAGE  231 

coming  or  not;  the  train  was  going  eight  miles  an  hour  and  the  bell 
was  ringing  and  the  whistle  blowing;  one  could  see  up  and  down 
the  track  for  half  a  mile  at  the  point  of  the  accident;  he  would  pay 
well  for  the  team  and  wagon  but  not  for  killing  the  intestate,  as  the 
law  was  now  that  they  would  not  have  to  pay  for  anything  only  prop- 
erty; the  team  and  wagon  were  worth  about  $200  and  the  defendant 
wanted  to  be  liberal  and  made  it  $500,  and  that  was  all  it  would  pay. 
The  plaintiff  on  that  occasion  accepted  $500  in  full  settlement  of  her 
claim  and  signed  the  voucher  and  release.  She  subsequently  brought 
this  action,  alleging  by  her  complaint  that  all  the  representations  made 
by  McCormick  were  false  and  fraudulent  and  induced  her  to  make 
the  settlement  and  demanding  judgment  for  the  damages  she  had  there- 
by sustained.  At  the  trial  the  plaintiff  introduced  evidence  in  proof 
of  the  false  and  fraudulent  nature  of  the  statements  of  McCormick  and 
her  reliance  thereon,  and  the  defendant  introduced  opposing  evidence. 
The  trial  judge  in  his  charge  instructed  the  jury  in  substance  that, 
if  they  found  that  the  statements  made  by  McCormick  were  misrepre- 
sentations of  facts  and  were  fraudulently  made  and  were  relied  upon 
by  the  plaintiff,  then  she  was  entitled  to  recover  as  damages  "the 
amount  the  plaintiff  could  reasonably  obtain  on  a  settlement  where 
nothing  but  the  true  facts  were  given  or  relied  upon,  deduct  from  that 
the  amount  paid,  and  the  residue  would  be  the  recovery.  In  other 
words,  how  much  could  the  plaintiff  reasonably  have  demanded  and 
received  from  the  defendant  by  way  of  settlement  if  these  false  repre- 
sentations had  not  been  made  ?"  The  defendant's  counsel  requested  the. 
judge  to  charge  that  the  plaintiff,  in  order  to  maintain  the  action,  must 
show,  in  the  first  instance,  that  she  had  a  valid  and  existing  claim 
against  the  defendant  originally,  and  the  judge  responded:  "I  refuse 
to  charge  in  that  language.  She  must  show  that  there  was  a  claim 
which  was  disputed  and  contested ;  that  she  was  alleging  a  claim  based 
upon  facts  sufficient  that  she  could  reasonably  apprehend  that  she  had 
a  just  claim  and  that  the  defendant  could  also  feel  that  she  had  a  just 
claim."  Proper  exceptions  thereto  were  taken.  The  verdict  of  the 
jury  in  favor  of  plaintiff  was  unanimously  affirmed. 

COI.LIN,  J.16  In  an  action  for  the  recovery  of  damages  caused  by 
the  fraud  of  the  defendant,  the  plaintiff  must  allege  and  prove  that  he 
has  been  injured  by  the  fraud  which  he  charges.  The  essential  con- 
stituents of  the  action  are  firmly  fixed  and  are  tersely  stated  in  Arthur 
v.  Griswold,  55  N.  Y.  400,  as  "representation,  falsity,  scienter,  deception 
and  injury."  Pecuniary  loss  to  the  deceived  party  is  absolutely  es- 
sential to  the  maintenance  of  the  action.  Fraud  and  deceit  alone  do 
not  warrant  the  recovery  of  damages.  Deceit  and  injury  must  con- 
cur. Taylor  v.' Guest,  58  N.  Y.  262;  Ettlinger  v.  Weil,  184  N.  Y.  179, 
77  N.  E.  31. 

IB  A  portion  of  the  opinion  of  Collin,  J.,  and  all  the  dissenting  opinion  of 
Vann,  J.,  is  omitted, 


232  FRAUD 

In  the  action  at  bar  the  plaintiff  was  not  defrauded  by  the  transac- 
tions between  herself  and  McCormick  unless,  as  a  result  thereof,  she 
lost  something  of  value.  In  case  that  result  was  a  gain  to  her  or  pure- 
ly negative,  representing  neither  gain  nor  loss,  clearly  there  is  no  room 
for  the  application  thereto  of  any  rule  of  damages ;  the  enforcement 
of  any  measure  of  damages,  when  loss  and  damage  are  wholly  lacking, 
is  impossible  and  inconceivable.  Dung  v.  Parker,  52  N.  Y.  494 ;  Hicks 
v.  Deemer,  187  111.  164,  58  N.  E.  252.  In  Hicks  v.  Deemer,  supra,  the 
action  was  to  recover  the  damages  sustained  by  the  plaintiff  because  of 
the  false  representations  on  the  part  of  the  defendants,  in  that  they 
induced  the  plaintiff  to  convey  his  interest  in  certain  land  under  the 
erroneous  belief  created  by  defendants'  deceit  that  he  owned  only  a 
life  estate  therein,  whereas,  as  he  alleged,  he  was  the  owner  in  fee 
simple.  At  the  trial  the  plaintiff  gave  evidence  supporting  his  abso- 
lute ownership,  and  the  defendants  sought  to  prove  that  his  sole  es- 
tate was  an  interest  for  his  life.  The  court  held  that  plaintiff's  right  of 
action  depended  upon  his  ownership  of  the  fee  and  that  the  trial  court 
erred  in  refusing  to  charge  the  jury  that  before  they  could  find  injury 
and  damage  to  the  plaintiff  they  must  find  that  he  was  the  owner  in 
fee  simple  of  the  land. 

The  jury,  in  the  case  here,  found  that  the  deceit  of  the  defendant 
moved  the  plaintiff  to  release  unto  the  defendant,  in  consideration  of 
the  sum  of  $500,  whatever  right  or  cause  of  action  she  had  against  it 
through  the  killing  of  her  husband.  Unless  the  right  of  action  had  a 
value  and  a  value  greater  than  $500,  the  plaintiff  was  not  defrauded. 
If  what  she  parted  with  had  a  value  and  a  value  less  than  or  only  equal 
to  the  value  of  that  which  she  received,  she  was  not  injured ;  if  great- 
er, she  was  injured  and  in  a  sum  equal  to  its  excess  of  value.  The 
basic  principle  underlying  all  rules  for  the  measurement  of  damages 
in  actions  for  fraud  and  deceit  is  indemnity  for  the  actual  pecuniary 
loss  sustained  as  the  direct  result  of  the  wrong.  Krumm  v.  Beach,  96 
N.  Y.  398.  Neither  advantage  nor  disadvantage  resulting  to  the  plain- 
tiff from  the  settlement  enters  in  any  way  into  our  consideration.  The 
question  is,  What  was  the  value  of  that  with  which  plaintiff  parted 
and  what  was  the  value  of  that  which  she  received  ?  If  the  plaintiff's 
claim  against  the  defendant  had  been  based  upon  an  alleged  promis- 
sory note  made  by  defendant,  and  McCormick  had  effected  a  compro- 
mise thereof  by  false  and  fraudulent  statements  as  to  defendant's  sol- 
vency and  the  existence  of  a  counterclaim,  she,  in  an  action  to  recover 
her  damages  caused  by  the  fraud,  must  have  given  evidence  in  proof 
of  the  validity  of  the  note  to  afford  the  jury  a  starting  point  for  the 
measurement  of  her  damages,  and  if  they  found  that  the  note  was 
forged  and  not  made  by  defendant,  they  would  find  also  that  she  had 
sustained  no  damage  and  could  not  maintain  the  action.  Unless  she 
had  the  valid  note  of  the  defendant,  she  had  and  released  in  the  com- 
promise nothing  of  value.  Resuming  the  discussion  of  the  present  case, 
the  jury  were  bound,  having  found  the  fraud,  to  determine  whether 


DAMAGE  233 

the  plaintiff  was  injured  through  the  fraud,  and,  if  injured,  the  sum  of 
her  damages.  In  case  the  right  of  action  had  no  value,  she  had  gain- 
ed by  the  transaction  and  was  not  injured.  It  had  no  value  what- 
ever if  the  true  state  of  facts  disclosed  that  it  was  an  invalid  and  non- 
existing  claim,  or,  in  other  words,  that  the  defendant  was  not  neg- 
ligent, or,  if  the  defendant  was  negligent,  that  the  intestate  was  not 
free  from  contributory  negligence.  If,  however,  the  true  state  of  facts 
would  have  established  that  the  defendant  was  negligent  and  the  in- 
testate free  from  contributory  negligence,  then  the  plaintiff  had  a  valu- 
able right  of  action,  the  acquirement  of  which  through  the  fraud  may 
have  injured  her.  Until  the  jury  found  the  real  facts  and  that  they 
created  a  valid  claim  against  the  defendant,  they  had  not  a  basis  for 
estimating  the  damages  the  plaintiff  had  sustained.  The  action  is  not 
to  enforce  or  vacate  the  compromise,  but  to  recover  the  actual  pecuniary 
loss  sustained  by  the  plaintiff.  An  alleged  value  of  the  claim  based 
upon  the  accident  and  the  death  or  facts  sufficient  to  warrant  the  reason- 
able belief  of  the  plaintiff  that  she  had  a  just  claim  is  of  a  nature  too 
speculative  and  wagering  to  be  recognized  by  the  law  in  this  action  for 
fraud.  The  jury  in  considering  the  question  of  damages  should  first 
ascertain  whether  or  not  the  plaintiff  was  originally  entitled  to  a  re- 
covery of  some  amount.  Otherwise  they  could  not  determine  whether, 
by  executing  the  release,  she  parted  with  value,  and  if  they  could  not 
determine  that,  they  could  not  decide  whether  or  not  she  was  dam- 
aged. Through  what  method  or  by  what  means  would  they  be  able 
to  know  that  the  sum  of  $500  was  not  equal  to  the  fair  value  of  the 
right  of  action  until  they  knew  that  the  right  of  action  had  validity  and 
would  entitle  her  to  some  amount?  She  was  entitled  to  the  fair  value 
of  this  disputed  claim,  but  that  value  must  be  ascertained  through  a 
rule  possessing  reasonable  certainty  and  working  a  reasonably  just  re- 
sult. If  the  jury  determine  that  she  was  not  originally  entitled  to  re- 
cover, then  their  verdict  would  be  for  the  defendant.  If  they  deter- 
mine that  she  was  entitled  to  recover,  then  they  would  proceed  to  meas- 
ure the  damages,  and  the  rule  by  which  they  should  be  guided  there- 
in has  been  clearly  expressed  by  us  in  Gould  v.  Cayuga  County  Nation- 
al Bank,  99  N.  Y.  333,  2  N.  E.  16.  Assuming  that  the  parties  meant  to 
avoid  litigation  and  compromise  their  dispute,  and  that  the  true  facts 
and  defendant's  contradiction  of  them  were  disclosed,  how  much  could 
the  plaintiff  have  reasonably  demanded  and  the  defendant  reasonably 
have  allowed  as  a  final  compromise  above  and  beyond  the  $500,  in  fact 
allowed  and  received  ?  That  the  jury  must  answer.  They  would  take 
into  view  the  probabilities  of  the  successful  enforcement  of  the  cause 
of  action,  the  probable  extent  and  expense  of  the  expected  litigation 
over  this  disputed  claim,  the  law's  delays,  the  probability  of  the  con- 
tinuing solvency  of  the  defendant  and  such  other  facts  pertinent  to  the 
question  of  damages  as  the  evidence  presented.  What  under  all  the 
conditions  and  circumstances  was  this  claim  of  the  plaintiff,  valid  un- 


234  FRAUD 

der  the  true,  yet  opposed,  and  contradicted,  state  of  facts,  worth  for 
purpose  of  sale,  transfer  or  cancellation,  if  anything  at  all,  above  the 
$500?  *  *  * 

CULLEN,  C.  J.,  GRAY  and  WERNER,  JJ.,  concur  with  COLLIN,  J. 
HISCOCK,  J.,  concurs  with  VANN,  J.  HAIGHT,  J.,  absent. 

Judgment  reversed,  etc. 


SLANDER  OF  TITLB  235 


SLANDER  OF  TITLE 


DOOLING  v.  BUDGET  PUB.  CO. 

•(Supreme  Judicial  Court  of  Massachusetts,  1887.     144  Mass.  258,  10  N.  E.  S09, 

59  Am,  Rep.  83.) 

Tort,  for  an  alleged  libel,  contained  in  the  following  words :  "Prob- 
ably never  in  the  history  of  the  Ancient  and  Honorable  Artillery  Com- 
pany was  a  more  unsatisfactory  dinner  served  than  that  of  Monday 
last.  One  would  suppose,  from  the  elaborate  bill  of  fare,  that  a  sumptu- 
ous dinner  would  be  furnished  by  the  caterer,  Dooling ;  but  instead,  a 
wretched  dinner  was  served,  and  in  such  a  way  that  even  hungry  bar- 
barians might  justly  object.  The  cigars  were  simply  vile,  and  the 
wines  not  much  better." 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  the  publica- 
tion of  the  words  by  the  defendant  was  admitted. 

The  plaintiff's  counsel,  in  opening  the  case  to  the  jury,  stated  that 
the  plaintiff  was  a  caterer  in  the  city  of  Boston  with  a  very  large  busi- 
ness, and  acted  as  caterer  upon  the  occasion  referred  to.  Upon  the 
statement  of  the  plaintiff's  counsel  that  he  should  offer  no  evidence 
of  special  damage,  the  judge  ruled,  without  reference  to  any  question 
of  privilege  that  might  be  involved  in  the  case,  that  the  words  set  forth 
were  not  actionable  per  se,  and  that  the  plaintiff  could  not  maintain 
his  action  without  proof  of  special  damage,  and,  the  plaintiff's  counsel 
still  stating  that  he  should  offer  no  evidence  of  special  damage,  direct- 
ed a  verdict  for  the  defendant,  and  reported  the  case  for  the  determina- 
tion of  this  court. 

If  the  ruling  was  correct,  judgment  was  to  be  entered  on  the  verdict; 
otherwise  the  case  to  stand  for  a  new  trial. 

C.  ALLEN,  J.  The  question  is  whether  the  language  used  imports 
any  personal  reflection  upon  the  plaintiff  in  the  conduct  of  his  busi- 
ness, or  whether  it  is  merely  in  disparagement  of  the  dinner  which  he 
provided.  Words  relating  merely  to  the  quality  of  articles  made,  pro- 
duced, furnished,  or  sold  by  a  person,  though  false  and  malicious,  are 
not  actionable  without  special  damage.  For  example,  the  condemna- 
tion of  books,  paintings,  and  other  works  of  art,  music,  architecture, 
and  generally  of  the  product  of  one's  labor,  skill,  or  genius,  may  be 
unsparing,  but  it  is  not  actionable  without  the  averment  and  proof  of 
special  damage,  unless  it  goes  further,  and  attacks  the  individual. 
Gott  v.  Pulsif er,  122  Mass.  235,  23  Am.  Rep.  322 ;  Swan  v.  Tappan,  5 
Cush.  104;  Tobias  v.  Harland,  4  Wend.  (N.  Y.)  537;  Western  Coun- 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  89,  90. 


236  FRAUD 

ties  Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  L.  R.  9  Ex.  218; 
Young  v.  Macrae,  3  B.  &  S.  264;  Ingram  v.  Lawson,  6  Bing.  N.  C. 
212.  Disparagement  of  property  may  involve  an  imputation  on  per- 
sonal character  or  conduct,  and  the  question  may  be  nice,  in  a  particu- 
lar case,  whether  or  not  the  words  extend  so  far  as  to  be  libelous,  as 
in  Bignell  v.  Buzzard,  3  H.  &  N.  217. 

The  old  case  of  Fen  v.  Dixe,  W.  Jones,  444,  is  much  in  point.  The 
plaintiff  there  was  a  brewer,  and  the  defendant  spoke  of  his  beer  in 
terms  of  disparagement  at  least  as  strong  as  those  used  by  the  present 
defendant  in  respect  of  the  plaintiff's  dinner,  wines,  and  cigars;  but 
the  action  failed  for  want  of  proof  of  special  damage. 

In  Evans  v.  Harlow,  5  Q.  B.  624,  631,  Lord  Denman,  C.  J.,  said: 
"A  tradesman  offering  goods  for  sale  exposes  himself  to  observations 
of  this  kind;  and  it  is  not  by  averring  them  to  be  'false,  scandalous, 
malicious,  and  defamatory'  that  the  plaintiff  can  found  a  charge  of  libel 
upon  them." 

In  the  present  case  there  was  no  libel  on  the  plaintiff,  in  the  way 
of  his  business.  Though  the  language  used  was  somewhat  strong, 
it  amounts  only  to  a  condemnation  of  the  dinner  and  its  accompani- 
ments. No  lack  of  good  faith,  no  violation  of  agreement,  no  promise 
that  the  dinner,  should  be  of  a  particular  quality,  no  habit  of  providing 
dinners,  which  the  plaintiff  knew  to  be  bad,  is  charged,  nor  even  an 
excess  of  price  beyond  what  the  dinner  was  worth;  but  the  charge 
was,  in  effect,  simply  that  the  plaintiff,  being  a  caterer,  on  a  single 
occasion,  provided  a  very  poor  dinner,  vile  cigars,  and  bad  wines.  Such 
a  charge  is  not  actionable,  without  proof  of  special  damage. 

Judgment  on  the  verdict. 


INTERFERENCE   WITH  CONTRACTUAL  RIGHTS  237 

INTERFERENCE  WITH  CONTRACTUAL  RIGHTS 
I.  Prospective  Contracts  of  Employment x 

FOLSOM  v.  LEWIS. 

{Supreme  Judicial  Court  of  Massachusetts,  1911.    208  Mass.  336,  94  N.  E.  316, 

35  IA  R.  A.  [N.  S.]  787.) 

Bill  by  Lucius  B.  Folsom  'and  others  against  George  F.  Lewis  and 
others.  From  a  decree  for  plaintiffs,  defendants  appeal. 

The  injunction  contained  the  following,  amongst  other,  provisions: 
"And  they  are  further  enjoined  from,  in  any  way,  directly  or  indi- 
rectly, continuing  or  proceeding  with  or  causing  to  be  continued  or 
proceeded  with  the  strike  referred  to  in  these  proceedings  for  the 
purpose  of  compelling  the  plaintiffs  to  enter  into  any  agreement  with 
the  union  as  such  to  employ  none  but  union  men,  or  for  the  purpose  of 
directly  or  indirectly  compelling  the  plaintiffs  to  unionize  their  shop 
or  to  run  a  closed  shop  or  to  employ  none  but  union  men,  and  from 
directly  or  indirectly  paying  to  any  one  any  strike  benefit  in  the  further- 
ance of  the  strike  referred  to  in  these  proceedings,  and  from  paying 
or  furnishing  to  any  person  or  persons,  partnership  or  corporation,,  any 
money,  property  or  other  consideration  to  induce  any  person  to  leave  or 
refrain  from  entering  the  employment  of  the  plaintiffs  in  pursuance  of 
the  purposes  enumerated." 

KNOWLTON,  C.  J.  This  is  one  of  ten  bills  in  equity,  brought  by  dif- 
ferent parties  and  heard  together  before  a  master,  to  obtain  an  in- 
junction to  restrain  the  defendants  from  calling  or  declaring  any  strike, 
and  from  proceeding  with  any  strike  already  called,  to  "unionize"  the 
plaintiffs'  shop,  from  inducing  or  persuading  persons  under  contracts 
of  employment  to  break  them,  and  from  conspiring  or  combining  to 
prevent  any  person,  by  threats,  picketing  or  intimidation,  from  en- 
tering or  continuing  in  the  employ  of  the  plaintiffs,  and  to  recover 
damages.  Exceptions  were,  taken  by  both  parties  to  the  report  of 
the  master,  and,  after  a  hearing,  the  plaintiffs'  exceptions  were  sus- 
tained and  the  defendants'  exceptions  overruled.  A  decree  for  the 
plaintiffs  was  entered,  and  the  defendants  appealed. 

There  was  a  strike  by  the  Boston  Photo-Engravers'  Labor  Union 
against  all  the  nonunion  employers  of  photo-engravers  in  Boston.  The 
master  found  "that  one  of  the  objects  of  the  strike  was  to  compel  the 
employers  to  recognize  the  union  as  such,  to  employ  none  but  union 
men,  or  nonunion  men  provided  they  should  join  the  union  within  30 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  91. 


238  INTERFERENCE   WITH   CONTRACTUAL  RIGHTS 

days,  and  after  a  certificate  of  the  right  to  work  until  the  time  that  they 
had  joined  the  union,  and  that  the  strike  was  a  strike  for  the  closed 
shop."  He  therefore  found  and  ruled  that  the  strike  was  not  for  a 
lawful  object  in  these  particulars. 

The  principal  contention  before  us  is  that  this  finding  is  plainly 
wrong.  The  evidence  upon  this  part  of  the  case  is  not  before  us,  except 
as  the  master  has  reported  a  large  number  of  evidential  facts  most,  if 
not  all,  of  which  appear  to  be  unquestioned,  upon  which  his  conclusion 
is  founded.  The  only  evidence  that  he  was  asked  to  report  was  that 
on  the  claim  for  damages. 

The  matters  stated  in  the  report  amply  justify,  if  they  do  not  require, 
the  finding  of  this  conclusion  by  the  master.  The  general  course  of 
proceedings  of  the  local  union  and  its  officers,  and  the  International 
Photo-Engravers'  Union  with  which  the  local  union  was  connected,  and 
the  officers  of  the  International  Union,  some  of  whom  were  in  Boston 
several  months  before  the  strike  was  called,  seemingly  engaged  in  the 
work  of  trying  to  obtain  control  of  the  labor  in  all  the  shops  in  Boston 
and  to  compel  the  assent  by  the  employers  to  an  agreement  which 
should  establish  the  closed  shop  in  this  business  in  Boston,  all  tend  to 
support  this  finding  of  the  master.  While  certain  concessions  were 
asked  for  in  the  interest  of  the  men,  just  before  the  strike  was  ordered, 
most,  if  not  all,  of  which  the  employers  seem  to  have  been  willing  to 
grant,  the  part  of  the  proposed  agreement  which  the  representatives  of 
the  union  absolutely  insisted  upon  was  article  8 :  "That  the  employing 
photo-engravers  signing  this  agreement  shall  employ  none  but  members 
of  the  International  Photo-Engravers'  Union  of  North  America,  or  ap- 
plicants for  positions  holding  a  permit  from  the  Boston  Photo-Engrav- 
ers' Union,  No.  3,  P.  E.  U."  There  is  nothing  in  the  case  to  indi- 
cate that  there  was  anything  in  the  condition  of  the  business,  or  in  the 
relations  of  the  workmen  to  their  employers,  that  made  such  a  re- 
quirement of  any  importance  to  these  employes,  in  reference  to  their 
profit  or  comfort,  or  other  direct  interest  as  employes.  The  master  was 
undoubtedly  right  in  finding  that  the  purpose  of  the  defendants  and  the 
real  object  of  the  strike  was  not  so  much  to  obtain  certain  slight  advan- 
tages referred  to  in  the  proposed  agreement,  as  to  compel  the  em- 
ployers by  inflicting  this  injury  upon  them,  to  submit  to  an  attempt  to 
obtain  for  the  union  a  complete  monopoly  of  the  labor  market  in  this 
kind  of  business,  by  forcing  all  laborers  who  wished  to  work  to  join 
the  union,  and  by  forcing  all  employers  to  agree  not  to  employ  laborers, 
except  upon  such  terms  as  they  could  make  with  the  combination  that 
should  control  all  labor  in  this  business.  This  has  been  held  to  go 
beyond  the  limit  of  justifiable  competition.  Conduct  directly  affecting 
an  employer  to  his  detriment,  by  interference  with  his  busi- 
ness, is  not  justifiable  in  law,  unless  it  is  of  a  kind  and  for  a  purpose 
that  has  a  direct  relation  to  benefits  that  the  laborers  are  trying  to  ob- 
tain. Strengthening  the  forces  of  a  labor  union,  to  put  it  in  a 


PROSPECTIVE  CONTRACTS   NOT   OF   EMPLOYMENT  239 

better  condition  to  enforce  its  claims  in  controversies  that  may  after- 
wards arise  with  employers,  is  not  enough  to  justify  an  attack  upon 
the  business  of  an  employer  by  inducing  his  employes  to  strike.  Berry 
v.  Donovan,  188  Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108 
Am.  St.  Rep.  499,  3  Ann.  Cas.  738;  Plant  v.  Woods,  176  Mass.  492, 
57  N.  E.  1011,  51  L.  R.  A.  339,  79  Am.  St.  Rep.  330;  Pickett  v.  Walsh, 
192  Mass.  572,  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep. 
272,  7  Ann.  Cas.  638. 

This  most  important  part  of  the  decision  of  the  master  and  of  the 
judge  is  well  sustained. 

There  was  also  a  finding  that  the  defendants  interfered  with  persons 
who  were  under  contracts  with  the  plaintiffs  for  future  service,  by  in- 
ducing them  to  break  their  contracts.  This  too  was  a  special  wrong 
which  was  a  proper  subject  for  an  injunction. 

There  was  evidence  well  warranting  the  finding  of  the  master  on  the 
question  of  damages. 

Decree  affirmed  with  costs. 


II.  Prospective  Contracts  Not  of  Employment8 


MACAULEY  BROS.  v.  TIERNEY. 

(Supreme  Court  of  Rhode  Island,  1895.     19  R.  I.  255,  83  Atl.  1,  37  K  R.  A.  455, 

61  Am.  St.  Rep.  770.) 

MATTESON,  C.  J.3  The  complainants  are  master  plumbers,  engaged 
in  the  business  of  plumbing.  In  the  transaction  of  their  business,  they 
have  been  accustomed,  and  are  obliged  to  purchase  from  time  to  time 
materials  from  wholesale  dealers  in  Rhode  Island  and  other  parts  of 
the  United  States,  and,  among  others,  from  L,.  H.  Tillinghast  &  Co., 
of  Providence,  who,  with  the  New  England  Supply  Company,  are  the 
only  wholesale  dealers  in  plumbing  materials  in  this  state.  The  re- 
spondents are  also  master  plumbers,  and  officers  and  members  of  the 
Providence  Master  Plumbers'  Association,  a  voluntary  association,  af- 
filiated with  the  National  Association  of  Master  Plumbers  of  the 
United  States  of  America.  The  latter  association,  on  June  26,  1894, 
at  Baltimore,  in  convention  assembled,  adopted  resolutions  that  they 
would  withdraw  their  patronage  from  any  firm  manufacturing  or  deal- 
ing in  plumbing  material  selling  to  others  than  master  plumbers ;  that 
the  masters  should  demand  of  manufacturers  and  wholesale  dealers 
in  plumbing  material  to  sell  goods  to  none  but  master  plumbers ;  that 

2  For  discussion  of  principles,  see  Chapin  on  Torts,  §  92. 
s  A  portion  of  the  opinion  is  omitted. 


240  INTERFERENCE   WITH   CONTRACTUAL   RIGHTS 

the  association  should  keep  a  record  of  all  journeymen  and  plumbers 
who  place  in  buildings  plumbing  material  bought  by  consumers  of 
manufacturers  or  dealers;  that  a  committee  be  appointed  by  the  as- 
sociation in  every  state  and  county  for  the  purpose  of  reporting  to  the 
proper  officers,  at  its  head  office  in  the  state,  any  violations  of  these 
resolutions;  that  the  convention  urge  upon  the  association  to  perfect 
and  adopt  a  uniform  system  of  protection  for  the  trade  over  their  en- 
tire jurisdiction.  Subsequently,  a  resolution  of  amendment  was  adopt- 
ed, at  St.  Louis,  that  the  interpretation  of  the  resolutions  be  left  in  the 
hands  of  the  executive  committee  with  power.  Still  later,  a  resolution 
was  adopted,  at  Washington,  "that  it  is  the  sense  of  this  convention 
that  in  the  future  the  interpretation  of  the  term  of  'master  plumber/ 
as  set  forth  in  the  above  resolutions,  to  entitle  him  to  purchase  plumb- 
ing material,  be  construed  to  mean  master  plumbers  that  have  qualified 
under  state  or  local  enactments  where  such  exist." 

It  is  alleged  by  the  complainants  that  the  interpretation  put  by  the 
executive  committee  of  the  National  Association  on  these  resolutions 
is  that  those  only  are  to  be  regarded  as  master  plumbers  who  are  mem- 
bers of  the  National  Association,  or  members  of  the  several  local  as- 
sociations affiliated  with  the  National  Association;  that  the  complain- 
ants have  been  informed  by  various  wholesale  dealers  in  plumbing 
materials  in  the  United  States  outside  of  this  state  that  they  will  not 
sell  them  supplies  unless  they  shall  join  the  Providence  Master  Plumb- 
ers' Association,  and  that  these  dealers  are  forced  to  refuse  to  sell  them 
supplies  because  of  the  resolutions  referred  to  and  the  interpretation 
put  upon  them  by  the  executive  committee  of  the  National  Associa- 
tion, and  because  of  the  action  of  the  Providence  Master  Plumbers' 
Association  in  causing  such  dealers  to  be  notified  not  to  sell  to  the 
complainants,  under  the  penalty,  in  case  of  their  continuing  to  do 
so,  of  not  selling  to  any  member  of  the  association;  that  the  Prov- 
idence Master  Plumbers'  Association,  acting  through  the  respond- 
ents, has  issued  notice  to  L.  H.  Tillinghast  &  Co.  and  the  New 
England  Supply  Company  to  sell  supplies  to  none  but  members  of 
the  association ;  and  that,  in  consequence  of  these  notices,  these 
wholesale  dealers  have  notified  the  complainants  and  other  master 
plumbers  that  they  will  not  sell  plumbing  materials  to  plumbers  not 
members  of  the  Master  Plumbers'  Associations  in  the  places  in 
which  they  do  a  plumbing  business,  or  members  of  the  National  Asso- 
ciation; and  that,  since  the  date  limited  in  the  notices,  these  dealers 
have  refused  to  sell  to  the  complainants ;  and  that  they  have  been  un- 
able to  purchase  supplies  from  them  and  from  other  wholesale  dealers 
in  the  United  States,  because  they  are  not  members  of  the  Providence 
Master  Plumbers'  Association.  The  bill  charges  that  the  Providence 
Master  Plumbers'  Association  and  the  National  Association  have  con- 
spired together  to  prevent  the  complainants  from  buying  supplies  any- 
where in  the  United  States,  and  to  utterly  ruin  their  business,  unless 


PROSPECTIVE  CONTRACTS    NOT   OF   EMPLOYMENT  241 

they  will  submit  to  the  conditions  of  membership  in  and  become  mem- 
bers of  the  Providence  Master  Plumbers'  Association;  avers  that  the 
business  of  the  complainants  will  be  irremediably  ruined  unless  the  re- 
spondents are  enjoined  from  further  action,  and  are  compelled  to 
rescind  the  action  which  they  have  already  taken ;  and  prays  that  the 
respondents  may  be  directed  to  rescind  the  notices  given,  and  all  orders 
and  requests,  both  oral  and  written,  to  any  and  all  dealers  in  plumbers' 
supplies,  not  to  trade  with  such  dealers,  unless  they  shall  refuse  to  sell 
supplies  to  any  but  members  of  such  associations,  and  to  rescind  and 
withdraw  any  and  all  orders  and  requests  to  the  National  Association 
to  prevent  wholesale  dealers  outside  of  the  state  of  Rhode  Island  from 
selling  supplies  to  the  complainants;  and  that  the  respondents  may 
be  enjoined  from  all  further  interference  with  the  complainants  by  no- 
tifying such  dealers  not  to  sell  to  them,  or  by  further  requests  to  said 
National  Association  to  prevent  them,  from  buying  supplies  anywhere 
in  the  United  States.  Testimony  has  been  submitted  by  the  complain- 
ants tending  to  prove  the  allegations  of  the  bill. 

Assuming  that  the  allegations  are  fully  sustained  by  the  proof,  have 
the  complainants  made  a  case  entitling  them  to  relief  ?  We  think  not. 
The  complainants  proceed  on  the  theory  that  they  are  entitled  to  pro- 
tection in  the  legitimate  exercise  of  their  business ;  that  the  sending  of 
the  notices  to  wholesale  dealers  not  to  sell  supplies  to  plumbers  not 
members  of  the  association,  under  the  penalty,  expressed  in  some  in- 
stances and  implied  in  others,  of  the  withdrawal  of  the  patronage  of  the 
members  of  the  associations  in  case  of  a  failure  to  comply,  was  unlaw- 
ful, because  it  was  intended  to  injuriously  affect  the  plumbers  not 
members  of  the  association  in  the  conduct  of  their  business,  and  must 
necessarily  have  that  effect.  It  is  doubtless  true,  speaking  generally, 
that  no  one  has  a  right  intentionally  to  do  an  act  with  the  intent  to  in- 
jure another  in  his  business.  Injury,  however,  in  its  legal  sense,  means 
damage  resulting  from  a  violation  of  a  legal  right.  It  is  this  violation 
of  a  legal  right  which  renders  the  act  wrongful  in  the  eye  of  the  law, 
and  makes  it  actionable.  If,  therefore,  there  is  a  legal  excuse  for  the 
act,  it  is  not  wrongful,  even  though  damage  may  result  from  its  per- 
formance. The  cause  and  excuse  for  the  sending  of  the  notices,  it  is 
evident,  was  a  selfish  desire  on  the  part  of  the  members  of  the  associa- 
tion to  rid  themselves  of  the  competition  of  those  not  members,  with 
a  view  to  increasing  the  profits  of  their  own  business.  The  question, 
then,  resolves  itself  into  this :  Was  the  desire  to  free  themselves  from 
competition  a  sufficient  excuse,  in  legal  contemplation,  for  the  sending  of 
the  notices?  We  think  the  question  must  receive  an  affirmative  an- 
swer. Competition,  it  has  been  said,  is  the  life  of  trade.  Every  act 
done  by  a  trader  for  the  purpose  of  diverting  trade  from  a  rival,  and 
attracting  it  to  himself,  is  an  act  intentionally  done,  and,  in  so  far  as  it 
is  successful,  to  the  injury  of  the  rival  in  his  business,  since  to  that  ex- 
CHAP.CAS. TORTS — 16 


242  INTERFERENCE   WITH   CONTRACTUAL  RIGHTS 

tent  it  lessens  his  gains  and  profits.  To  hold  such  an  act  wrongful  and 
illegal  would  be  to  stifle  competition.  Trade  should  be  free  and  unre- 
stricted; and  hence  every  trader  is  left  to  conduct  his  business  in  his 
own  way,  and  cannot  be  held  accountable  to  a  rival  who  suffers  a  loss 
of  profits  by  anything  he  may  do,  so  long  as  the  methods  he  employs 
are  not  of  the  class  of  which  fraud,  misrepresentation,  intimidation,  co- 
ercion, obstruction,  or  molestation  of  the  rival  or  his  servants  or  work- 
men, and  the  procurement  of  violation  of  contractual  relations,  are  in- 
stances. 

A  leading  and  well-considered  case  on  this  subject  was  Steamship 
Co.  v.  McGregor,  [1892]  23  Q.  B.  Div.  598,  App.  Cas.  25.  In  this 
case  the  defendants,  who  were  shipowners,  had  formed  a  league  for  the 
purpose  of  keeping  in  their  own  hands  the  control  of  the  tea-carrying 
trade  between  London  and  China,  and  for  the  purpose  of  driving  the 
plaintiff  and  other  competing  shipowners  from  the  field.  The  acts  com- 
plained of  as  unlawful  by  which  the  defendants  sought  to  accomplish 
their  purpose  were:  (1)  The  offer  to  local  shippers  and  other  agents 
of  a  benefit  by  way  of  rebate  if  they  would  not  deal  with  the  plaintiff, 
which  was  to  be  lost  if  this  condition  was  not  fulfilled;  (2)  the  sending 
of  special  ships  to  Hankow,  in  the  hope  by  competition  to  deprive  the 
plaintiff's  vessels  of  profitable  freight;  (3)  the  offer  at  Hankow  of 
freights  at  so  low  a  rate  as  not  to  repay  the  shipowner  for  his  adven- 
ture, in  order  to  smash  freights  and  frighten  the  plaintiff  from  the  field ; 
(4)  pressure  put  on  their  own  agents  to  induce  them  to  ship  only  by  the 
defendants'  vessels,  and  not  by  the  plaintiff's.  The  plaintiff  alleged 
that  the  league  was  a  conspiracy,  and  claimed  damages  and  an  injunc- 
tion against  a  continuance  of  the  alleged  unlawful  acts.  It  was  held 
that  since  the  acts  of  the  defendants  were  not  in  themselves  unlawful, 
and  were  done  by  them  with  the  lawful  object  of  protecting  and  extend- 
ing their  own  trade  and  increasing  their  profits  and  as  they  had  em- 
ployed no  unlawful  means,  the  plaintiff  had  no  cause  of  action.  Bowen, 
L,.  J.,  remarks  (page  614)  :  "His  [the  trader's]  right  to  trade  freely  is  a 
right  which  the  law  recognizes  and  encourages,  but  it  is  one  which  plac- 
es him  at  no  special  disadvantage  as  compared  with  others.  No  man, 
whether  trader  or  not,  can,  however,  justify  damaging  another  in  his 
commercial  business  by  fraud  or  misrepresentation.  Intimidation,  ob- 
struction, and  molestation  are  forbidden ;  so  is  intentional  procurement 
of  the  violation  of  individual  rights,  contractual  or  other,  assuming, 
always,  that  there  is  no  just  cause  for  it.  The  intentional  driving 
away  of  customers  by  show  of  violence  (Tarleton  v.  McGawley,  Peake, 
270);  the  obstruction  of  actors  on  the  stage  by  preconcerted  hissing 
(Clifford  v.  Brandon,  2  Camp.  358;  Gregory  v.  Brunswick,  6  Man.  & 
G.  205) ;  the  disturbance  of  wild  fowl  in  decoys  by  the  firing  of  guns 
(Carrington  v.  Taylor,  11  East,  571;  Keeble  v.  Hickeringall,  Id.  574, 
note) ;  the  impeding  or  threatening  of  servants  or  workmen  (Garret 
v.  Taylor,  Cro.  Jac.  567) ;  the  inducing  of 'persons  under  personal  con- 


PROSPECTIVE  CONTRACTS   NOT   OF   EMPLOYMENT  243 

tracts  to  break  their  contracts  (Bowen  v.  Hall,  L.  R.  6  Q.  B.  Div.  333 ; 
Lumley  v.  Gye,  2  El.  &  Bl.  216) — all  are  instances  of  such  forbidden 
acts.  But  the  defendants  have  been  guilty  of  none  of  these  acts.  They 
have  done  nothing  more  against  the  plaintiffs  than  to  pursue  to  the 
bitter  end  a  war  of  competition  waged  in  the  interest  of  their  own  trade. 
To  the  argument  that  competition  so  pursued  ceases  to  have  a  just 
cause  or  excuse  when  there  is  ill  will  or  personal  intention  to  do  harm, 
it  is  sufficient  to  reply  *  *  *  that  there  was  here  no  personal  in- 
tention to  do  any  other  or  greater  harm  to  the  plaintiffs  than  such  as 
was  necessarily  involved  in  the  desire  to  attract  to  the  defendants'  ships 
the  entire  tea  freights  of  the  ports,  a  portion  of  which  would  otherwise 
have  fallen  to  the  plaintiffs'  share.  I  can  find  no  authority  for  the  doc- 
trine that  such  a  commercial  motive  deprives  of  'just  cause  or  excuse' 
acts  done  in  the  course  of  trade  which  would  be  but  for  such  motive 
justifiable.  So  to  hold  would  be  to  convert  into  an  illegal  motive  the 
instinct  of  self-advancement  and  self-protection,  which  is  the  very  in- 
centive to  all  trade.  To  say  that  a  man  is  to  trade  freely,  but  that  he 
is  to  stop  short  at  any  act  which  is  calculated  to  harm  other  tradesmen, 
and  which  is  designed  to  attract  business  to  his  own  shop,  would  be 
a  strange  and  impossible  counsel  of  perfection."  The  case  at  bar  con- 
tains no  element  of  the  character  of  those  enumerated  by  the  lord 
justice  which  are  forbidden  by  law,  unless  the  threat  of  the  withdrawal 
of  patronage  may  be  considered  as  amounting  to  coercion.  We  do  not 
think,  however,  that  such  a  threat  can  be  regarded  as  coercive  within  a 
legal  sense ;  for,  though  coercion  may  be  exerted  by  the  application  of 
moral  as  well  as  physical  force,  the  moral  force  exerted  by  the  threat 
was  a  lawful  exercise  by  the  members  of  the  associations  of  their  own 
rights,  and  not  the  exercise  of  a  force  violative  of  the  rights  of  others, 
as  in  the  cases  cited  by  the  lord  justice.  It  was  perfectly  competent 
for  the  members  of  the  association,  in  the  legitimate  exercise  of  their 
own  business,  to  bestow  their  patronage  on  whomsoever  they  chose,  and 
to  annex  any  condition  to  the  bestowal  which  they  saw  fit.  The  whole- 
sale dealers  were  free  to  comply  with  the  condition  or  not,  as  they  saw 
fit.  If  they  value  the  patronage  of  the  members  of  the  associations 
more  than  that  of  the  nonmembers,  they  would  doubtless  comply ;  oth- 
erwise, they  would  not.  *  *  * 

It  only  remains  to  notice  the  charge  of  conspiracy  contained  in  the 
bill,  upon  which  considerable  stress  has  been  laid,  as  though  the  fact 
that  the  action  of  the  members  of  the  associations  was  in  pursuance  of 
a  combination  entitled  the  complainants  to  relief.  To  maintain  a  bill 
on  the  ground  of  conspiracy,  it  is  necessary  that  it  should  appear  that 
the  object  relied  on  as  the  basis  of  the  conspiracy,  or  the  means  used 
in  accomplishing  it,  were  unlawful.  What  a  person  may  lawfully  do,  a 
number  of  persons  may  unite  with  him  in  doing,  without  rendering 
themselves  liable  to  the  charge  of  conspiracy,  provided  the  means  em- 
ployed be  not  unlawful.  The  object  of  the  members  of  the  associa- 
tion was  to  free  themselves  from  the  competition  of  those  not  mem- 


244  INTERFERENCE  WITH   CONTRACTUAL  RIGHTS 

bers,  which,  as  we  have  seen,  is  not  unlawful.  The  means  taken  to 
accomplish  that  object  were  the  agreement  among  themselves  not  to 
deal  with  wholesale  dealers  who  sold  to  those  not  members  of  the  as- 
sociations, and  the  .sending  of  notices  to  that  end  to  the  wholesalers. 
This,  as  we  have  also  seen,  was  not  unlawful.  Hence  it  follows  that, 
as  the  object  of  the  combination  between  the  members  of  the  associa- 
tions was  not  unlawful,  nor  the  means  adopted  for  its  accomplishment 
unlawful,  there  is  no  ground  for  the  charge  of  conspiracy,  and  the 
fact  of  combination  is  wholly  immaterial.  Com.  v.  Hunt,  4  Mete. 
(Mass.)  Ill,  129,  38  Am.  Dec.  346;  Bowen  v.  Matheson,  14  Allen 
(Mass.)  499;  Wellington  v.  Small,  3  Cush.  (Mass.)  145,  150,  50  Am. 
Dec.  719;  Carew  v.  Rutherford,  106  Mass.  1,  14,  8NAm.  Rep.  287; 
Payne  v.  Railroad  Co.,  81  Tenn.  (13  Lea)  507,  521,  49  Am.  Rep.  666; 
Hunt  v.  Simonds,  19  Mo.  583,  588;  Robertson  v.  Parks,  76  Md.  118, 
134,  135,  24  Atl.  411;  Steamship  Co.  v.  McGregor  [1892]  23  Q.  B. 
Div.  598,  App.  Cas.  25;  Manufacturing  Co.  v.  Hollis,  54  Minn.  223, 
234,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319;  Delz  v. 
Winfree,  80  Tex.  400,  404,  16  S.  W.  Ill,  26  Am.  St.  Rep.  755.  We  are 
of  the  opinion  that  the  bill  should  be  dismissed. 


ALFRED  W.  BOOTH  &  BRO.  v.  BURGESS. 

(Court  of  Chancery  of  New  Jersey,  1906.     72  N.  J.  Eq.  181,  65  Atl.  226.) 
STEVENSON,  V.  C.4     Upon  the  motion  papers  as  they  stand,  coun- 
sel for  the  complainant  applied  for  an  injunction  merely  to  enjoin  the 
maintenance  of  a  boycott.     The  motion  for  a  wider  preliminary  in- 
junction indicated  by  the  order  to  show  cause  was  abandoned. 

The  complainant  is  a  corporation  under  the  laws  of  New  Jersey, 
carrying  on  the  business  of  lumber  dealers  and  manufacturers  of 
doors,  blinds,  trim,  and  other  millwork  used  in  the  erection  of  build- 
ings. Its  customers  are  boss  carpenters  and  building  contractors.  It 
owns  its  yard  and  mill,  which  are  situate  at  Bayonne,  in  Hudson  coun- 
ty, and  the  value  of  its  plant  and  stock  on  hand  is  over  $200,000.  It 
employs  about  25  hands.  The  defendants  against  whom  a  preliminary 
injunction  was  prayed  for  are  officers  and  agents  of  the  labor  organiza- 
tions which  embrace  the  building  trades  of  Hudson  county.  These 
trades  ,are  organized  in  the  usual  way  in  local  unions,  a  district  council 
composed  of  delegates  from  all  the  local  unions  in  Hudson  county,  and 
a  united  brotherhood  composed  of  all  the  local  unions  throughout  the 
United  States  and  Canada  belonging  to  the  order,  which  local  unions, 
however,  are  represented  in  the  convention  or  governing  body  of  the 
united  brotherhood  by  delegates.  Consequent  upon  a  dispute  as  to 
hours  of  labor  and  wages  between  the  complainant  and  its  employes, 
the  complainant  "declared  the  open  shop,"  the  employes  struck,  and 

*  Portions  of  the  opinion  are  omitted. 


PROSPECTIVE  CONTRACTS   NOT  OF   EMPLOYMENT  245 

thereupon  the  complainant  became  involved  in  a  contest  with  the  whole 
system  of  labor  unions  in  Hudson  county  connected  with  the  building 
trades,  embracing  between  two  and  three  thousand  workmen.  The 
complainant  became  "unfair,"  and  all  its  products  likewise  became  "un- 
fair." The  labor  organizations,  through  the  defendants,  their  officers 
and  agents,  have  notified  the  boss  carpenters  and  builders  that  the  com- 
plainant's goods  are  "unfair"  and  that  members  of  the  unions  will  not 
handle  them,  and  that  if  they  receive  or  use  any  of  this  unfair  material 
their  employes  will  be  called  out,  and  thus  they  are  confronted  with 
loss,  if  not  ruin,  in  case  they  persist  in  dealing  with  the  complainant. 
Under  this  coercion  certain  boss  carpenters  have  broken  their  con- 
tracts with  the  complainant  under  which  they  were  receiving  the  com- 
plainant's goods,  and,  what  is  of  more  consequence,  other  boss  car- 
penters and  builders  who  had  been  regular  customers  of  the  com- 
plainant have  been  constrained  to  refrain  from  using  its  goods  on  their 
jobs,  inasmuch  as  the  inevitable  result  of  such  use  would  be  that  all 
their  employes  who  are  members  of  these  allied  labor  unions  would 
immediately  be  called  off  and  forced  into  a  strike. 

It  is  a  fact  of  the  utmost  importance  in  my  judgment  in  this  case — 
a  fact  which  I  think  is  absolutely  essential  to  the  granting  of  the  most 
important  part  of  the  injunctive  relief  prayed  for  by  the  complainant — 
that  the  defendants'  scheme  for  coercing  the  boss  carpenters  to  con- 
duct their  business  as  they  (the  defendants)  wish  to  have  it  conducted, 
does  not  involve  merely  the  voluntary  action  of  the  employes  of  the 
boss  carpenters  individually  or  in  combination,  and  the  announcement 
of  such  voluntary  action  or  intended  voluntary  action;  the  scheme 
includes  the  coercion  by  the  defendants  of  the  employes  of  the  boss 
carpenters.  These  workmen  are  to  be  forced  to  strike  against  their 
will  whenever  the  defendants  shall  say  the  word.  The  coercion  con- 
sists in  the  fact  that  if  any  workman  refuses  to  strike  he  is  liable  to 
a  fine,  and  also  to  expulsion  from  his  union.  Expulsion  from  the 
union  subjects  the  victim  not  only  to  obloquy  but  also  to  pecuniary 
loss,  and  makes  it  more  difficult  for  him  to  get  employment  and  make 
his  living,  as  is  amply  illustrated  in  this  case.  It  does  not  appear  that 
the  boss  carpenters  are  greatly  injured  or  inconvenienced  by  being 
obliged  to  refrain  from  dealing  with  the  complainant.  It  may  be  in- 
ferred that  these  contractors  are  able  to  supply  themselves  with  goods 
of  the  class  which  the  complainant  manufactures  from  other  sources, 
and  hence  they  seem  to  be  inclined  readily  to  submit  to  the  coercion 
of  the  defendants.  Their  attitude  is  precisely  the  same  as  that  of 
Mr.  Munce  in  Quinn  v.  Leatham,  infra  [(1901)  A.  C.  495].  The  pe- 
cuniary loss  from  this  boycott  falls  directly  upon  the  complainant,  and 
it  is  evident  that  this  loss  is  of  such  an  extent  and  nature  as  will  war- 
rant the  use  of  the  injunctive  power  of  a  court  of  equity,  provided 
such  loss  is  caused  by  conduct  of  the  defendants  which  is  unlawful. 

Upon  the  filing  of  the  bill  and  annexed  affidavits  an  order  was  made 


246  INTERFERENCE   WITH   CONTRACTUAL   RIGHTS 

requiring  the  defendants  to  show  cause  why  an  injunction  should  not 
issue  according  to  the  prayer  of  the  bill,  upon  the  return  of  which 
order  the  defendants  appeared  and  filed  an  answer  and  affidavits. 
After  hearing  an  elaborate  argument  by  counsel,  I  advised  an  order 
for  an  injunction  restraining  the  defendants  "from  calling  out  or 
directing  to  strike  any  employe  or  employes  of  the  complainant's  cus- 
tomers or  persons  who  were  willing  to  deal  with  the  complainant, 
with  the  intent  or  with  the  effect  to  coerce  or  induce,  by  fear  of  loss, 
such  customer  or  persons  willing  to  deal  with  the  complainant,  to 
break  their  contracts  with  the  complainant,  or  to  refrain  from  dealing 
with  the  complainant;  and  also  restraining  the  defendants  from 
coercing  or  inducing  such  employes  by  fine  or  expulsion  from  a  labor 
union,  or  by  threat  of  such  fine  or  expulsion  to  refrain  from  being 
employed  by  such  customers  with  the  intent  or  effect  aforesaid."  An 
appeal  having  been  taken  from  this  order  to  the  Court  of  Errors  and 
Appeals,  it  is  necessary  that  I  should  set  forth  the  "reasons"  of  the 
order.  *  *  * 

We  now  approach  the  discussion  of  the  facts  of  the  case  in  hand, 
and  in  such  discussion  we  must  bear  in  mind  at  every  stage  two  prin- 
ciples which  I  think  at  the  present  day  are  established  beyond  ques- 
tion. The  first  of  these  principles  is  the  absolute  right  of  all  men 
to  contract  or  refrain  from  contracting,  which  is  one  of  the  rights 
hereinbefore  enumerated.  The  motives  which  actuate  a  man  in  re- 
fraining from  making  a  contract  in  relation  to  labor  or  merchandise  or 
anything  else  are  absolutely  beyond  all  inquiry  or  challenge.  Self- 
evident  as  it  may  be,  the  proposition,  I  think,  has  often  been  lost  sight 
of  that  the  right  to  refrain  from  contracting  is  an  absolute  right,  which 
every  man  can  exercise  justly  or  unjustly,  for  a  good  purpose  or  for  a 
bad  purpose,  "maliciously,"  in  the  popular  sense  of  the  term,  or  benevo- 
lently. The  second  principle  to  keep  in  view  is  not  at  present  universal- 
ly recognized  as  sound  law,  viz.,  that  men  have  an  absolute  right  to 
act  in  voluntary  combination  with  respect  to  contracting  or  refraining 
from  contracting.  No  doubt  there  is  authority  for  the  proposition  that 
defendants,  by  combining  with  a  "malicious"  intent  to  exercise  together 
the  right  to  refrain  from  contracting,  may  be  guilty  of  a  tort — of  a 
violation  of  a  right  held  by  the  party  damaged  by  such  combined 
abstention  from  contracting.  Passing  the  defect  in  the  formulation 
of  this  proposition,  I  can  only  repeat,  what  I  attempted  to  set  forth 
in  deciding  the  case  of  Jersey  City  v.  Cassidy  [63  N.  J.  Eq.  759,  53 
Atl.  233],  that  it  seems  to  me  that  the  settled  American  doctrine, 
apart  from  all  recent  statutes,  is  that  all  dealers  in  the  market,  whether 
in  merchandise  or  in  labor,  on  each  side  of  the  market,  have  an  ab- 
solute right  to  combine  voluntarily  to  concurrently  exercise  their  sev- 
eral rights  to  refrain  from  contracting  if  they  see  fit  to  do  so,  however 
immoral  their  motives  may  be.  If  this  is  not  good  law,  then  the  right 
to  refrain  from  contracting  is  subject  to  a  most  extraordinary  limita- 


PROSPECTIVE  CONTRACTS   NOT   OF   EMPLOYMENT  247 

tion  which  leads  to  absurd  results.  It  may  be  worth  while  to  note 
precisely  what  a  free  combination  of  employers  or  employes  or  vendors 
or  purchasers  actually  do  when,  for  the  purposes  of  a  strike  or  a  boy- 
cott, they  concurrently  exercise  by  agreement  their  several  and  re- 
spective rights  to  refrain  from  contracting.  They  are  not  combining, 
as  is  sometimes  erroneously  supposed,  to  do  anything,  much  less  to 
do  the  same  thing;  they  are  merely  agreeing  voluntarily  that  each  of 
them  will  refrain  from  doing  a  certain  thing  which  is  precisely  similar 
to  another  thing  which  each  of  the  others  in  like  manner  will  refrain 
from  doing.  If  they  commit  any  tort,  i.  e.,  any  actionable  wrong,  it 
consists  essentially  in  nonfeasance,  not  misfeasance — refraining  from 
doing  anything,  not  doing  anything.  Let  us  suppose  that  it  is  estab- 
lished as  law  that  the  combined  action  of  a  large  number  of  persons 
may  be  so  productive  of  evil  as  to  make  these  persons  civilly  liable  for 
a  tort  which  may  be  defined  as  a  "malicious"  or  unjustifiable  con- 
spiracy to  injure  one  in  his  business,  even  though  precisely  the  same 
harmful  conduct  pursued  to  the  extent  possible  by  a  single  individual 
would  not  involve  him  in  any  liability  whatever.  This,  it  seems  to  me, 
is  substantially  the  proposition  which  the  judges,  or  the  most  of  the 
judges,  in  Quinn  v.  Leatham  [(1901)  A.  C.  495],  considered  as  under- 
lying one  of  the  causes  of  action  established  in  that  case.  The  five  offi- 
cers and  agents  of  the  labor  union  were  found  guilty  of  conspiring  to 
instruct,  i.  e.,  to  positively  direct,  the  employes  of  Mr.  Munce  to  re- 
frain from  dealing  with  him.  This  was  held  to  be  a  misfeasance.  The 
five  defendants  were  not  charged  with  combining  to  refrain  from  act- 
ing or  to  refrain  from  doing  anything.  When,  however,  we  pass  to 
a  voluntary  combination  of  Mr.  Munce's  employes  to  refrain  from 
renewing  their  contracts  for  service  with  him,  we  have  a  clear  case  of 
nonfeasance.  It  seems  to  me  that  there  is  a  very  wide  distinction  be- 
tween an  unlawful  conspiracy  to  do  things  which  each  one  of  the  con- 
spirators by  himself  has  an  absolute  right  to  do,  on  the  one  hand,  and 
an  unlawful  conspiracy  merely  to  refrain  from  doing  things  which  no 
one  of  the  conspirators  is  under  the  slightest  obligation  to  do.  The 
moment  it  is  established  that  one  man  has  an  absolute  right  to  refrain 
from  contracting,  and  that  his  motives  are  beyond  all  challenge,  I  am 
entirely  unable  to  perceive  how  a  voluntary  agreement  between  two 
men  that  they  will  severally  and  at  the  same  time  exercise  this  ab- 
solute right  can  be  erected  into  a  tort  involving  liability  for  damages. 
Without  for  a  moment  conceding  that  either  of  the  so-called  "con- 
spiracies" above  contrasted  can  constitute  a  tort,  I  desire  to  point  out 
that  even  if  the  first-mentioned  conspiracy  is  held  to  be  a  tort,  in  ac- 
cordance with  the  views  of  the  judges  in  Quinn  v.  Leatham,  a  great 
extension  of  the  doctrine  is  necessary  before  the  other  conspiracy, 
the  conspiracy  of  nonfeasance,  the  conspiracy  to  refrain  from  doing, 
can  be  adjudged  such  tort.  If  dealers  in  the  market  who  voluntarily 
combine  to  refrain  from  contracting  with  intent  to  damage  some  one 


248  INTERFERENCE   WITH   CONTRACTUAL  RIGHTS 

in  his  business  are  guilty  of  a  tort,  it  must  be  that  some  or  all  of  them 
are  under  an  obligation  to  contract.  It  seems  hardly  possible  that  two 
or  more  persons  may  be  liable  for  damages  resulting  from  their  failure 
to  act  unless  they  were  legally  bound  to  act.  It  did  not  require  the 
judgment  of  the  House  of  Lords  in  Allen  v.  Flood  [(1898)  A.  C.  1] 
to  make  clear  the  rule  that  when  men,  either  singly  or  in  combination, 
intentionally  pursue  a  line  of  conduct  which  they  have  a  right  to  pur- 
sue, the  existence  of  an  immoral  or  a  "malicious"  motive  cannot  make 
such  conduct  unlawful.  *  *  * 

The  last  question  to  be  considered  which  is  presented  by  the  facts 
of  this  case  is  whether  there  is  any  justification  shown  for  the  inter- 
ference with  the  complainant's  market  by  the  coercion  exercised  upon 
the  employes  of  the  boss  carpenters  by  those  defendants  or  the  labor 
organization  which  they  represent.  It  may  be  conceded  that  the  co- 
ercion may  be  justified,  and  hence  may  not  constitute  a  violation  of 
any  one's  right  to  a  free  market,  precisely  as  persuasions  and  induce- 
ments may  be  justified  so  that  they  cannot  constitute  the  tort  which 
consists  in  causing  the  breach  of  a  contract.  The  concrete  question 
in  this  case  is  whether  these  employes  of  the  boss  carpenters,  by  volun- 
tarily joining  these  labor  unions  and  subjecting  themselves  to  the  by- 
laws and  regulations  of  these  unions  and  the  control  of  its  officers  and 
agents,  deprive  the  coercion  which  is  exercised  upon  them  of  all  illegal 
taint.  This  is  the  only  question  in  this  case  which  seemed  to  me  to 
be  open  to  debate.  In  the  first  place,  it  must  be  borne  in  mind  that 
employes  of  the  boss  carpenters  are  not  here  in  court  making  any  com- 
plaint. The  coercion  was  exercised  upon  them,  and  they  may  have 
suffered  on  that  account;  but  it  is  not  their  grievance  which  is  being 
redressed,  in  this  suit.  As  we  have  seen,  it  is  the  interest  of  the  com- 
plainant in  their  freedom  to  deal  in  the  labor  market,  and  not  their 
own  interest  in  their  freedom  to  deal  in  that  market,  which  this  court 
in  this  suit  is  asked  to  protect.  Suppose  it  be  conceded  that  these  em- 
ployes may  surrender  their  liberty  to  the  arbitrary  power  of  this  im- 
mense organization  and  agree  that  this  power  can  be  exercised  when- 
ever a  business  agent  of  the  organization  speaks  the  word;  they  can 
only  surrender  the  interest  which  they  themselves  have  in  their  liberty. 
I  certainly  do  not  propose  to  question  the  lawfulness  of  fining  or  ex- 
pelling, and  consequently  threatening  to  fine  and  expel,  members  of 
labor  unions  who  disobey  the  laws  to  which  they  have  voluntarily 
subjected  themselves.  It  is  impossible  to  give  the  time  necessary  for 
an  exhaustive  discussion  of  this  somewhat  novel  subject.  Let  it  be 
conceded  for  the  purposes  of  this  case  that  labor  unions  may  lay  down 
many  rules  for  the  guidance  of  employers  in  the  conduct  of  their  busi- 
ness, and  prohibit  by  by-laws  or  otherwise  their  members  from  work- 
ing for  employers  who  disregard  those  rules.  Employers,  for  instance, 
who  expose  their  employes  to  dangerous  machinery  or  unwholesome 
conditions  may  find  that  they  cannot  readily  employ  union  men,  and 


PROSPECTIVE  CONTKACTS   NOT  OF  EMPLOYMENT  249 

union  men  who,  in  violation  of  the  by-laws  of  their  unions,  engage 
themselves  to  such  employers,  may  be  exposed  to  fines  or  expulsion 
from  their  unions.  These  and  other  similar  cases,  the  status  of  which 
in  the  eye  of  the  law  I  do  not  pause  to  consider,  present  the  use  of 
the  penalties  of  fine  and  expulsion  for  the  purpose  of  advancing  the 
legitimate  objects  of  the  union.  When,  however,  the  threat  of  fine 
and  expulsion  is  employed  for  the  purpose  of  coercing  the  employes 
of  a  large  number  of  different  employers  to  refrain  from  renewing 
their  contracts  for  labor  in  order  to  coerce  all  these  employers  to 
boycott  the  complainant,  with  the  ultimate  object  of  coercing  the  com- 
plainant in  respect  of  a  matter  with  which  the  employes  who  are  first 
coerced  have  absolutely  no  concern  whatever,  then  it  seems  to  me  the 
whole  scheme  becomes  an  attack  upon  the  complainant's  right  to  a  free 
market.  No  surrender  of  liberty  or  voluntary  agreement  to  abide  by 
by-laws  on  the  part  of  the  employes  who  are  first  coerced,  made  by 
them  when  they  enter  their  labor  unions,  can  in  my  judgment  affect 
the  right  of  the  complainant  to  a  free  market,  which  right  he  will 
enjoy  for  all  it  may  be  worth  if  these  employes  are  permitted  to  exer- 
cise their  liberty.  The  employes  may  be  able  to  surrender  their  own 
right,  but  they  certainly  cannot  surrender  the  right  of  other  parties. 
Boutwell  v.  Marr,  supra  [71  Vt  1,  42  Atl.  607,  43  L.  R.  A.  803,  76 
Am.  St.  Rep.  746],  and  Berry  v.  Donovan,  supra  [188  Mass.  353,  74 
N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108  Am.  St.  Rep.  499,  3  Ann.  Cas. 
738],  I  think  fully  sustain  the  view  that  no  justification  has  been  shown 
in  this  case.  If  2,500  workmen  in  Hudson  county  could,  by  permitting 
themselves  to  be  organized  into  labor  unions,  surrender  not  only  their 
own  right  to  freedom  in  respect  of  making  contracts,  but  also  destroy 
the  interest  of  all  other  dealers  in  that  freedom,  the  whole  f&undation 
of  the  right,  to  a  free  market  would  be  swept  away.  *  *  * 

The  views  which  I  have  suggested  in  regard  to  the  case  of  Quinn  v. 
Leatham  and  the  opinions  of  the  judges  delivered  in  deciding  that 
case  may  be  summed  up  as  follows : 

First.  The  right  of  the  plaintiff  which  was  vindicated  was  the 
right  to  a  free  market,  and  it  was,  as  I  have  just  stated,  quite  unneces- 
sary to  assert  on  the  plaintiff's  behalf  the  right  to  be  protected  against 
a  conspiracy  to  damage  his  business,  unless  the  conduct  of  the  de- 
fendants complained  of  might  have  been  pursued  with  impunity  by  a 
single  defendant.  The  invasion  of  the  plaintiff's  right — the  tort  of 
the  defendants — consisted  in  the  coercion  exercised  by  them  on  the 
plaintiff's  customer  Munce  by  threat  to  coerce  Munce's  employes  into  a 
strike.  This  tort,  as  Lord  Lindley  shows,  might  be  committed  by  a 
single  defendant. 

Second.  If  the  employes  of  Munce  had  voluntarily  combined  to 
coerce  him  to  refrain,  from  dealing  with  the  plaintiff  by  merely  exer- 
cising their  absolute  right  to  refrain  from  contracting  further  with 
him  (Munce)  unless  their  demands  were  complied  with,  then  those 


250  INTERFERENCE   WITH   CONTRACTUAL  RIGHTS 

employes  would  have  been  guilty  of  no  tort  recognized  by  our  Amer- 
ican law,  and  no  inquiry  into  their  motives  would  be  allowed. 

Third.  Whether  a  plaintiff  who  has  been  damaged  in  his  business 
in  a  case  like  Quinn  v.  Leatham  by  coercion  of  his  customers,  effected 
by  causing  or  threatening  to  cause  the  employes  of  such  customers  to 
strike  by  mere  persuasions,  payment  of  money,  or  any  other  non- 
coercive  inducement,  has  a  cause  of  action  against  the  person  or  per- 
sons who  have  so  caused  such  damage,  is  a  question  not  raised  in 
this  present  case.  When  such  a  case  is  presented,  it  seems  to  me  that 
the  question  of  conspiracy,  i.  e.,  the  significance  of  a  combination  of 
two  or  more  defendants,  will  come  up  only  after  it  has  been  deter- 
mined that  the  plaintiff  had  no  right  to  natural  market  conditions  as 
against  unjustifiable  interference  by  outside  parties  exercising  the 
noncoercive  inducement. 

Fourth.  If  in  these  strike  and  boycott  cases  the  element  of  a  con- 
spiracy is  to  be  found,  it  would  seem  that  there  must  be  a  combina- 
tion among  the  defendants  which  brings  to  bear  upon  the  plaintiff  an 
aggregation  of  evil  minds.  This  notion  lay  at  the  basis  of  the  common- 
law  crime  of  conspiracy.  One  man  might  resolve  to  cause  and  under- 
take to  cause  some  damage  to  another  without  incurring  criminal  or 
civil  liability,  but,  if  two  or  more  men  combined  to  do  the  same  thing, 
their  conduct  became  oppressive.  The  increase  of  power  from  ari 
aggregation  of  evil  minds  and  wills  constitutes  the  gist  of  the  criminal 
offense  of  conspiracy. 

Several  of  the  English  judges  in  these  recent  strike  and  boycott 
cases  have  intimated  the  opinion  that  for  the  same  reason  which  sus- 
tained the  criminal  offense  of  conspiracy  a  combination  of  defend- 
ants in  a  case  like  Quinn  v.  Leatham,  actuated  by  bad  motives  and 
causing  damage  to  the  plaintiff,  constitutes  a  tort  and  creates  civil 
liability,  the  combined  action  of  two  or  more  persons  being  an  essen- 
tial element  of  such  tort.  This  reasoning  may  apply  correctly  to  the 
voluntary  combination  of  employes  or  employers,  vendors  or  pur- 
chasers, acting  together  with  intent  to  damage  the  plaintiff,  and  in  fact 
causing  such  damage.  In  this  case,  however,  notwithstanding  the 
rule  which,  according  to  Lord  Watson,  had  been  "generally  accepted" 
in  the  inferior  English  courts,  and  notwithstanding  what  Lord  Chan- 
cellor Halsbury  and  other  judges  said  in  Quinn  v.  Leatham,  I  feel 
quite  sure  that  the  accepted  American  view  sustains  the  absolute  right 
of  the  combined  body  of  employes  or  other  dealers  to  refrain  from 
contracting  as  they  may  see  fit,  however  wicked  or  "malicious"  their 
motives  may  be.  But  in  all  these  cases  of  voluntary  combinations  of 
dealers  we  have  presented  one  essential  element  of  a  conspiracy,  viz., 
an  enormous  increase  of  power  for  evil  arising  from  an  aggregation 
or  combination  of  evil  minds.  But  in  cases  like  Quinn  v.  Leatham, 
as  Lord  Lindley  has  distinctly  pointed  out,  the  fact  that  the  party  de- 
fendant consists  of  two  or  more  persons  is  a  mere  accident.  It  is 


EXISTING    CONTRACTS   OF   EMPLOYMENT  251 

true  that  in  Quinn  v.  Leatham  the  power  for  evil  resulted  from  a  com- 
bination, but  this  combination  was  not  that  of  the  two  or  more  defend- 
ants. The  oppression  and  coercion  resulting  from  the  combined  action 
of  Munce's  employes  was  the  result  of  coercion  upon  them  which  re- 
quired no  combination  in  order  to  its  exercise  in  the  most  complete 
degree.  The  employes  of  Munce  whose  coerced  combination  was  the 
menace  which  constrained  him  to  refrain  from  dealing  with  the  plain- 
tiff were  not  conspirators  voluntarily  and  willfully  uniting  their  several 
evil  minds  to  oppress  the  plaintiff ;  on  the  contrary,  they  were  victims. 
In  the  case  before  this  court  the  employes  of  the  boss  carpenters  are 
not  conspirators  willfully  combining  to  do  damage  which  each  of  them 
severally  would  be  powerless  to  effect.  It  is,  as  I  have  undertaken 
to  show,  an  essential  element  of  the  defendant's  tort  in  this  case  that 
they  coerce  the  employes  of  these  carpenters  to  refrain  from  further 
contracting  with  their  employers.  The  moment  it  appears  that  these 
unfortunate  employes  are  willful  conspirators  the  whole  foundation 
of  the  plaintiff's  claim  that  his  right  to  a  free  market  has  been  violated 
immediately  disappears. 

For  the  reasons  indicated,  it  seems  to  me  inadvisable  to  base  the  lia- 
bility of  the  party  defendant  in  cases  like  Quinn  v.  Leatham  and  the 
present  case,  when  such  party  defendant  happens  to  consist  of  more 
than  one  person,  upon  any  theory  of  conspiracy.  In  the  foregoing  dis- 
cussion no  distinction  has.  been  drawn  between  coercion  of  a  single 
dealer  or  customer  in  the  market  and  coercion  of  a  large  number  of 
dealers  or  customers.  As  a  matter  of  fact,  in  these  boycott  cases  we 
have  presented  in  every  instance  coercion  of  a  number  of  dealers  or 
a  class  of  dealers,  and  it  is  this  sort  of  coercion  of  which  the  plaintiff 
complains.  The  tort  in  cases  like  Quinn  v.  Leatham  and  the  present 
case  consists  essentially  in  the  creation  by  coercion  of  an  involun- 
tary combination,  but  the  persons  in  combination  are  not  conspirators 
and  are  not  made  defendants  in  the  suit.  The  party  defendant,  wheth- 
er a  single  person  or  two  persons,  or  ten  persons,  should,  I  think,  plain- 
ly be  regarded  as  a  unit. 


III.  Existing  Contracts  of  Employment5 


BEEKMAN  v.  MARSTERS. 

(Supreme  Judicial  Court  of  Massachusetts,  1907.     195  Mass.  205,  80  N.  E.  817, 
11  L.  R.  A.  [N.  S.]  201,  122  Am.  St.  Rep.  232,  11  Ann.  Cas.  332.) 

Bill  by  Gabriel  E.  Beekman  against  George  E.  Marsters  for  an  in- 
junction. Reserved  by  single  justice  for  the  determination  of  the  Su- 
preme Judicial  Court.  Injunction  granted. 

e  For  the  discussion  of  principles,  see  Chapin  on  Torts,  §  93. 


252  INTERFERENCE   WITH   CONTRACTUAL  RIGHTS 

LORING,  J.°  This  suit  came  before  the  single  justice  on  the  report 
of  a  master  to  which  no  exceptions  had  been  taken  by  either  party,  and 
was  reserved  by  him  for  our  consideration  and  determination  without 
any  ruling  or  decision  having  been  made. 

The  master  found  that  on  November  21,  1906,  a  contract  was  made 
between  the  plaintiff  and  the  Jamestown  Hotel  Corporation.  The 
Jamestown  Hotel  Corporation  is  a  corporation  which  is  erecting  or 
has  erected  a  hotel  within  the  grounds  of  the  Jamestown  Exposition 
to  be  held  between  April  26th  and  November  30th  of  this  year.  This 
hotel  is  known  as  the  "Inside  Inn,"  and'  is  to  be  the  only  hotel  within 
the  exposition  grounds.  The  plaintiff  is  the  proprietor  of  a  tourist 
agency,  having  an  office  at  293  Washington  street,  Boston.  By  the 
contract  between  the  plaintiff  and  the  hotel  corporation  the  plaintiff 
agreed  to  represent  the  hotel  .corporation  throughout  the  New  England 
states,  to  establish  subagencies  in  that  territory,  and  to  use  every  pos- 
sible endeavor  personally  and  through  his  agents  to  book  persons  for 
the  Inside  Inn;  and  the  defendant  agreed  "that  you  [the  plaintiff] 
shall  be  our  exclusive  agent  in  said  territory,"  to  pay  him  (the  plain- 
tiff) 25  cents  a  day  for  each  person  sent  by  him  to  the  hotel,  and  to 
furnish  the  plaintiff  with  all  necessary  "literature." 

Immediately  upon  being  thus  appointed  the  exclusive  agent  of  the 
hotel  corporation  the  plaintiff  prepared  and  issued  a  fall  edition  of  his 
"Tickets  and  Tours,"  in  which  inter  alia  a  description  is  given  of  the 
Jamestown  Exposition  and  of  the  Inside  Inn.  Following  this  is  the 
statement  that  the  plaintiff  has  been  appointed  New  England  agent  for 
the  exposition  "and  exclusive  representative  of  the  Inside  Inn." 

The  defendant  is  found  by  the  master  to  be  a  ticket  and  tourist 
agent,  with  an  office  at  298  Washington  street,  Boston.  On  January 
11,  1907,  he  went  to  Norfolk,  Va.,  and  called  upon  the  officers  of  the 
hotel  corporation  there.  At  this  time  he  "had  seen  the  contract  be- 
tween the  complainant  and  the  hotel  corporation,  but  had  not  read  it, 
and  knew  that  the  company  had  practically  consummated  a  contract 
making  Beekman  its  sole  representative  in  New  England."  The  de- 
fendant at  this  interview  told  these  officers  "that  it  was  a  mistake  for 
the  corporation  to  give  an  exclusive  agency  in  New  England  to  any 
one  man,  and  that  more  business  would  be  brought  to  the  company  if 
all  agents  were  given  equal  terms,"  and  to  enforce  his  arguments  stat- 
ed that  the  business  done  by  the  plaintiff  was  insignificant  and  that  the 
statement  was  false  which  was  made  in  the  summer  edition  of  his 
"Tickets  and  Tours"  that  certain  persons  therein  named  had  his  tick- 
ets and  tours  for  sale.  It  appeared  that  the  summer  edition  of  this 
catalogue  had  been  shown  to  the  hotel  corporation  by  the  plaintiff 
when  he  made  his  contract  with  it. 

The  master  found  that  "as  a  result  of  the  solicitations  or  represen- 
tations made  by  the  respondent,  the  Jamestown  Hotel  Corporation  on 

«  Portions  of  the  opinion  are  omitted. 


EXISTING   CONTRACTS   OF   EMPLOYMENT  253 

or  about  January  11,  1907,  entered  into  an  oral  contract  with  him, 
whereby  it  was  agreed  that  the  respondent  should  have  the  same 
rights  that  had  been  given  to  the  complainant,  and  that  he  should  be 
paid  by  the  corporation  25  cents  per  capita  per  day  for  each  guest 
whom  he  should  secure  for  the  Inside  Inn." 

The  defendant  then  wrote  to  all  men  named  in  the  plaintiff's  cata- 
logue except  those  having  places  of  business  in  Canada,  "and  two  or 
three  others  who  appeared  to  have  an  independent  agency  business," 
telling  them  that  the  plaintiff  had  not  an  exclusive  agency  for  New 
England  and  suggesting  to  them  that  they  could  get  paid  on  the  same 
footing  as  that  upon  which  the  plaintiff  and  defendant  were  to  be 
paid,  if  they  chose  to  act  for  themselves  and  not  as  subagents  of  the 
plaintiff.  He  also  wrote  to  the  New  York,  New  Haven  &  Hartford 
Railroad  Company,  calling  attention  to  the  fact  that  some  of  the  local 
ticket  agents  of  that  railroad  company  were  advertised  by  the  plain- 
tiff as  having  his  tickets  and  tours  on  sale,  and  suggesting  that  the  rail- 
road company  would  prefer  to  have  all  its  agents  strictly  neutral  in 
dealing  with  tourist  concerns. 

*  *  *  The  result  of  the  findings  of  the  master  must  be  taken  to 
be  that  the  defendant  induced  the  hotel  corporation  to  break  its  con- 
tract with  the  plaintiff,  but  that  it  did  not  do  this  to  spite  the  plaintiff 
or  for  the  purpose  of  injuring  him,  but  for  the  purpose  of  getting  for 
himself  (the  defendant)  business  which  the  plaintiff  alone  was  entitled 
to  under  the  contract  with  the  hotel  corporation,  that  is  to  say,  to  get 
business  which  the  defendant  could  not  get  if  the  hotel  corporation 
kept  its  agreement  with  the  plaintiff. 

Three  defenses  have  been  set  up  by  the  defendant,  namely:  First, 
that  he  had  a  right  to  do  what  he  did;  second,  that  the  plaintiff  does 
not  come  into  court  with  clean  hands;  and,  third,  that  the  plaintiff 
has  an  adequate  remedy  at  law  by  bringing  an  action  for  damages. 

1.  So  far  as  the  first  defense  is  concerned,  it  is  in  effect  that  where 
A.  is  under  a  contract  to  serve  the  plaintiff  for  a  specified  time,  the  de- 
fendant, knowing  that  contract  to  be  in  existence,  is  justified  in  hiring 
A.  away  from  the  plaintiff  before  the  expiration  of  that  time,  by 
giving  him  (A.)  higher  wages  if  he  (the  defendant)  thinks  that  to  be 
for  his  (the  defendant's)  pecuniary  benefit.  The  ground  on  which  the 
defendant  bases  this  contention  is  that  he  has  a  right  to  compete  with 
the  plaintiff  and  that  the  right  of  competition  is  a  justification  for  thus 
hiring  away  the  plaintiff's  servant. 

We  say  that  this  is  in  effect  the  defense  set  up  here  because  it  has 
been  settled  in  Massachusetts  that  there  is  no  distinction  between  a  de- 
fendant's enticing  away  the  plaintiff's  servant  and  a  defendant's  in- 
ducing a  third  person  to  break  any  other  contract  between  him  and 
the  plaintiff.  That  was  decided  by  this  court  in  Walker  v.  Cronin, 
107  Mass.  555.  See  page  567.  See,  also,  Moran  v.  Dunphy,  177 
Mass.  485,  59  N.  E.  125,  52  L.  R.  A.  115,  83  Am.  St.  Rep.  289.  In 


254  INTERFERENCE   WITH   CONTRACTUAL   RIGHTS 

other  words,  this  court  there  adopted  the  conclusion  reached  by  the 
majority  of  the  judges  of  the  Queen's  Bench  in  Lumley  v.  Gye,  2 
El.  &  Bl.  216.  This  is  also  the  settled  law  of  the  Supreme  Court  of 
the  United  States.  Angle  v.  Chicago,  St.  Paul,  etc.,  Ry.,  151  U.  S.  1, 
14  Sup.  Ct.  240,  38  L.  Ed.  55.  And  it  has  been  affirmed  in  England. 
Bowen  v.  Hall,  6  Q.  B.  D.  333 ;  Read  v.  Friendly  Society  of  Opera- 
tive Stonemasons,  [1902]  2  K.  B.  88;  Glamorgan  Coal  Co.,  Limited,  v. 
South  Wales  Miners'  Federation,  [1903]  2  K.  B.  545;  s.  c.  on  appeal, 
sub  nomine  South  Wales  Miners'  Federation  v.  Glamorgan  Coal  Co., 
Limited,  [1905]  A.  C.  239. 

No  case  has  been  cited  which  holds  that  a  right  to  compete  justifies 
a  defendant  in  intentionally  inducing  a  third  person  to  take  away 
from  the  plaintiff  his  contractual  rights. 

Not  only  has  no  case  been  cited  in  which  that  has  been  held,  but  no 
case  has  been  cited  in  which  that  contention  has  been  put  forward. 

It  happens,  however,  that  Judge  Wells  in  defining  the  rights  of  com- 
petition has  denied  the  existence  of  such  a  justification.  In  discussing 
the  first  count  in  Walker  v.  Cronin,  107  Mass.  555,  564,  he  said :  "Ev- 
ery one  has  a  right  to  enjoy  the  fruits  and  advantages  of  his  own  en- 
terprise, industry,  skill  and  credit.  He  has  no  right  to  be  protected 
against  competition ;  but  he  has  a  right  to  be  free  from  malicious  and 
wanton  interference,  disturbance  or  annoyance.  If  disturbance  or 
loss  come  as  a  result  of  competition,  or  the  exercise  of  like  rights  by 
others,  it  is  damnum  absque  injuria,  unless  some  superior  right  by  con- 
tract or  otherwise  is  interfered  with."  And  it  also  happens  that  in 
Read  v.  Friendly  Society  of  Operative  Stonemasons,  [1902]  2  K.  B. 
88,  Darling,  J.,  in  discussing  the  rights  of  a  labor  union  to  induce  the 
plaintiff's  employers  to  break  their  contract  of  apprenticeship  with 
him,  denied  it.  He  there  said :  "To  resume,  I  think  the  plaintiff  has 
a  cause  of  action  against  the  defendants,  unless  the  court  is  satisfied 
that,  when  they  interfered  with  the  contractual  rights  of  plaintiff,  the 
defendants  had  a  sufficient  justification  for  their  interference — to  use 
Lord  Macnagh ten's  words.  This  sufficient  justification  they  may  have 
had,  and  they  may  prove  it;  but  the  facts  found  by  the  county  court 
judge  and  relied  on  by  him  as  enough  do  not  amount  to  one;  for  it  is 
not  a  justification  that  'they  acted  bona  fide  in  the  best  interests  of  the 
society  of  masons,'  i.  e.,  in  their  own  interests.  Nor  is  it  enough  that 
'they  were  not  actuated  by  improper  motives.'  I  think  their  sufficient 
justification  for  interference  with  plaintiff's  right  must  be  an  equal  or 
superior  right  in  themselves,  and  that  no  one  can  legally  excuse  him- 
self to  a  man,  of  whose  contract  he  has  procured  the  breach,  on  the 
ground  that  he  acted  on  a  wrong  understanding  of  his  own  rights,  or 
without  malice,  or  bona  fide,  or  in  the  best  interests  of  himself,  nor 
even  that  he  acted  as  an  altruist,  seeking  only  the  good  of  another  and 
careless  of  his  own  advantage." 

It  is  hard  to  see  how  this  court  could  have  decided  Garst  v.  Charles,. 


EXISTING   CONTRACTS   OF   EMPLOYMENT  255 

187  Mass.  144,  72  N.  E.  839,  as  it  did  were  it  the  law  that  self-interest 
is  a  justification  for  intentionally  interfering  with  a  plaintiff's  con- 
tractual rights.  The  same  is  true  of  Bowen  v.  Hall,  6  Q.  B.  D.  333, 
if  not  of  Read  v.  Friendly  Society  of  Operative  Stonemasons,  [1902] 
2  K.  B.  88. 

The  argument  here  urged  by  the  defendant  comes  from  not  distin- 
guishing between  two  cases  which  not  only  are  not  the  same,  but  are 
altogether  different  so  far  as  the  question  now  under  consideration  is 
concerned. 

If  a  defendant  by  an  offer  of  higher  wages  induces  a  laborer  who  is 
not  under  contract  to  enter  his  (the  defendant's)  employ  in  place  of  the 
plaintiff's,  the  plaintiff  is  not  injured  in  his  legal  rights.  But  it  is  a 
quite  different  thing  if  the  laborer  was  under  a  contract  with  the 
plaintiff  for  a  period  which  had  not  expired,  and  the  defendant,  know- 
ing that,  intentionally  induced  the  laborer  to  leave  the  plaintiff's  employ 
by  an  offer  of  higher  wages,  to  get  his  (the  laborer's)  services  for  his 
(the  defendant's)  benefit. 

A  plaintiff's  right  to  carry  on  business,  that  is,  to  make  contracts 
without  interference,  is  an  altogether  different  right  from  that  of  be- 
ing protected  from  interference  with  his  rights  under  a  contract  al- 
ready made.  The  existence  of  both  rights  and  the  difference  between 
the  two  is  recognized  by  Wells,  J.,  in  Walker  v.  Cronin,  107  Mass.  555  ; 
the  first  count  in  that  case  went  on  the  first  right,  and  the  second  and 
third  counts  on  the  second  right.  Again,  the  existence  of  the  two  is 
recognized  and  stated  by  Holmes,  J.,  in  May  v.  Wood,  172  Mass.  11, 
14,  15,  51  N.  E.  191. 

Where  the  plaintiff  comes  into  court  to  get  protection  from  inter- 
ference with  his  right  of  possible  contracts,  that  is,  of  his  right  to 
pursue  his  business,  acts  of  interference  are  justified  when  done  by  a 
defendant  for  the  purpose  of  furthering  his  (the  defendant's)  interests 
as  a  competitor.  It  was  this  right  that  the  plaintiff  came  into  court 
to  assert  in  Carew  v.  Rutherford,  106  Mass.  1, 8  Am.  Rep.  287 ;  Walker 
v.  Cronin,  107  Mass.  555  (so  far  as  the  first  count  was  concerned) ; 
G.  Vegelahn  v.  Guntner,  167  Mass.  92,  44  N.  E.  1077,  35  L.  R.  A.  722, 
57  Am.  St.  Rep.  443;  Plant  v.  Wood,  176  Mass.  492,  57  N.  E.  1011, 
51  L.  R.  A.  339,  79  Am.  St.  Rep.  330;  Martell  v.  White,  185  Mass.  255, 
69  N.  E.  1085,  64  L.  R.  A.  260,  102  Am.  St.  Rep.  341 ;  Berry  v.  Dono- 
van, 188  Mass.  353,  74  N.  E.  603,  5  L.  R.  A.  (N.  S.)  899,  108  Am.  St. 
Rep.  499,  3  Ann.  Cas.  738,  and  Pickett  v.  Walsh,  192  Mass.  572,  78 
N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am.  St.  Rep.  272,  7  Ann.  Cas. 
638  (so  far  as  the  third  prayer  for  relief  was  concerned). 

The  cases  of  Walker  v.  Cronin,  107  Mass.  555  (so  far  as  the  second 
and  third  counts  were  concerned),  May  v.  Wood,  172  Mass.  11,  51  N. 
E.  191,  Garst  v.  Charles,  187  Mass.  144,  72  N.  E.  839,  and  Pickett  v. 
Walsh,  192  Mass.  572,  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116  Am. 
St.  Rep.  272,  7  Ann.  Cas.  638  (so  far  as  the  second  prayer  for  relief 
was  concerned),  are  cases  of  the  second  class. 


256  INTERFERENCE  WITH   CONTRACTUAL,  RIGHTS 

There  are  statements  in  opinions  in  Massachusetts  and  in  England 
that  a  defendant  is  not  liable  for  interference  with  a  plaintiff's  rights 
in  both  of  these  two  classes  of  cases  unless  he  acts  maliciously.  With- 
in the  meaning  of  malice  as  used  in  these  opinions  in  the  case  at  bar 
there  was  no  necessity  of  proving  spite  or  ill  will  toward  the  plaintiff. 
This  is  not  a  case  where  there  was  an  abuse  of  what,  if  done  in  good 
faith,  would  have  been  a  justification,  but  a  case  where  the  defendant 
with  knowledge  of  the  contract  between  the  plaintiff  and  the  hotel 
corporation  intentionally  and  without  justification  induced  the  hotel 
corporation  to  break  it.  That  is  proof  of  malice  within  the  meaning 
of  that  word  as  used  in  these  opinions.  South  Wales  Miners'  Federa- 
tion v.  Glamorgan  Coal  Co.,  Limited,  [1905]  A.  C.  239.  *  *  * 

The  terms  of  the  injunction  should  be  in  substance  that  the  defend- 
ant be  restrained  from  directly  or  indirectly  acting  as  agent  of  the 
hotel  corporation  within  the  New  England  states,  and  from  prevent- 
ing or  seeking  to  prevent,  directly  or  indirectly,  the  plaintiff  from  act- 
ing as  exclusive  agent  of  the  hotel  corporation  for  that  territory. 

So  ordered. 


IV.  Existing  Contracts  not  of  Employment1 


BOYSON  v.  THORN. 

(Supreme  Court  of  California,  1893.    98  Cal.  578,  33  Pac.  492,  21  L.  R.  A.  233.) 

HAYNES,  C.  Defendant  demurred  to  plaintiff's  complaint,  the  de- 
murrer was  sustained,  and  judgment  was  thereupon  rendered  dis- 
missing the  action,  from  which  judgment  the  plaintiff  appeals. 

The  complaint  alleges  that  Frank  G.  Newlands  is  the  owner  and  in 
possession  and  control  of  the  Palace  Hotel  in  the  city  of  San  Fran- 
cisco, and  of  a  public  restaurant  attached  thereto,  and  conducted  the 
same  as  a  hotel  and  restaurant,  and  that  the  defendant,  during  all  the 
times  mentioned  in  the  complaint,  was  the  agent  of  Newlands,  and  as 
such  had  charge  of  the  business  thereof,  and  direction  of  the  servants 
therein.  That  immediately  prior  to  November  1,  1889,  Newlands  en- 
tered into  an  agreement  whereby  plaintiff  hired  certain  rooms  in  said 
hotel,  as  lodgings  for  himself  and  wife  from  November  1,  1889,  at 
the  monthly  rent  of  $100;  that  they  were  to  have  their  meals  at  said 
restaurant,  or  furnished  from  said  restaurant  to  their  said  rooms,  he 
paying  therefor  the  usual  rates;  that  they  entered  and  occupied  the 
rooms,  and  in  all  things  complied  with  said  agreement,  but  that  on 
December  5,  1889,  the  "defendant  maliciously,  and  with  intent  to  op- 
press, annoy,  and  disturb  plaintiff  in  the  occupancy  of  his  lodgings, 
and  to  force  him  to  abandon  the  same,  and  to  deprive  him  of  the  com- 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  94. 


EXISTING   CONTRACTS   NOT   OF   EMPLOYMENT  257 

forts  and  conveniences  which  he  was  then  and  there  enjoying,  and  to 
injure  him  in  his  profession,  and  to  degrade  and  belittle  him  in  the 
eyes  of  the  guests  of  said  hotel  and  of  his  friends  and  of  the  public 
in  general,  and  in  fraud  of  said  agreement,  caused  and  procured  F.  G. 
Newlands  then  and  there  to  demand  that  plaintiff  and  his  wife  forth- 
with vacate  said  lodgings."  It  is  further  charged  that  defendant  mali- 
ciously caused  and  procured  Newlands  to  refuse  to  furnish  meals,  etc., 
and  to  instruct  the  servants  to  refuse  their  orders;  and  that  on  De- 
cember 12,  1889,  defendant  maliciously  caused  and  procured  Newlands 
to  threaten  and  attempt  to  forcibly  eject  plaintiff  and  his  wife  from 
said  rooms,  whereby  his  wife  became  ill,  and  he  was  compelled  to  and 
did  employ  a  nurse  at  an  expense  of  $60,  and  also  to  hire  men  to  pro- 
tect his  wife  and  retain  possession,  etc.,  at  a  further  expense  of  $60, 
and  prays  for  $25,120  damages.  The  action  is  against  Thorn  alone. 
The  demurrer  is  that  the  facts  stated  do  not  constitute  a  cause  of  ac- 
tion against  the  defendant. 

The  broad  question  presented  is  whether  an  action  will  lie  against 
one  who,  from  malicious  motives,  but  without  threats,  violence,  fraud, 
falsehood,  deception,  or  benefit  to  himself,  induces  another  to  violate 
his  contract  with  the  plaintiff.  We  state  the  question  thus  because  it 
will  be  observed  that  the  complaint  does  not  state  the  means  used  to 
cause  or  procure  Newlands  to  violate  his  contract  with  the  plaintiff, 
but  only  that  it  was  done  "maliciously."  The  general  rule  is  that  only 
those  who  are  parties  to,  or  in  some  manner  bound  by,  a  contract,  are 
liable  for  a  breach  of  it.  To  this  general  rule  there  are  certain  excep- 
tions, as,  for  example,  contracts  for  personal  services  involving  the  re- 
lation of  master  and  servant;  and  there  are  also  other  cases  that  are 
sometimes  classed  as  exceptions,  but  which  are  not  strictly  so.  In 
Cooley  on  Torts  (2d  Ed.,  p.  581)  it  is  said:  "An  action  cannot,  in 
general,  be  maintained  for  inducing  a  third  person  to  break  his  con- 
tract with  the  plaintiff,  the  consequence,  after  all;  being  only  a  broken 
contract,  for  which  the  party  to  the  contract  may  have  his  remedy  by 
suing  upon  it.  But  if  the  third  person  was  induced  to  break  his  con- 
tract by  deception  it  may  be  different.  If,  for  example,  one  were  to 
personate  a  vendee  of  goods,  and  receive  and  pay  for  them  as  on  a 
sale  to  himself,  the  vendee  would  have  his  action  against  the  vendor; 
but  he  might  also  pursue  the  party  who,  by  deceiving  one,  had  de- 
frauded both."  In  the  case  supposed  by  the  learned  author  the  gist  of 
the  action  is  the  fraud  of  the  defendant  in  personating  the  vendee. 
The  fact  that  the  only  injury  or  damage  sustained  by  the  vendee  in 
consequence  of  defendant's  fraud  was  the  loss  of  the  benefit  he  would 
have  derived  from  the  performance  of  the  contract  does  not  at  all 
change  the  character  of  the  action.  Suppose  that  A.,  knowing  that  B. 
is  about  to  bestow  upon  C.,  as  a  gratuity,  a  large  amount  of  money  or 
property,  and  A.  fraudulently  personates  C.,  and  receives  the  money 
or  property,  C.  could  have  no  action  against  B.,  for  there  was  no  con- 
CHAP.  CAS.  TOUTS — 17 


258  INTERFERENCE  WITH  CONTRACTUAL  RIGHTS 

/ 

tract  relation  between  them;  but  C.  could  have  his  action  against  A. 
for  the  loss  caused  by  his  fraud.  The  means  used  to  accomplish  the 
wrong  is  in  each  case  the  same,  showing  conclusively  that, the  fraud 
is  the  basis  of  the  action,  while  the  breach  of  the  contract  thus  pro- 
cured goes  only  to  the  question  of  damages ;  that  is,  how  and  in  what 
manner  and  to  what  extent  has  the  plaintiff  been  injured  by  the  fraud, 
deceit,  or  other  wrongful  act  of  the  defendant?  Rice  v.  Manley,  66 
N.  Y.  82,  23  Am.  Rep.  30,  cited  by  appellant,  is  another  illustration. 
There  the  plaintiffs  had  contracted  verbally  with  Stebbins  for  the  pur- 
chase of  a  large  quantity  of  cheese.  The  defendant,  Manley,  procured 
a  telegram  to  be  sent  to  Stebbins  in  the  name  of  E.  Rice,  falsely  say- 
ing that  plaintiffs  did  not  want  the  cheese,  and  thereby  induced  Steb- 
bins, who  supposed  E.  Rice  was  one  of  the  plaintiffs,  to  sell  the  cheese 
to  Manley.  Stebbins  was  not  bound  by  the  verbal  contract,  but  it  is 
found  that  he  would  have  performed  it  but  for  the  fraud  of  defend- 
ant. The  action  was  sustained.  Benton  v.  Pratt,  2  Wend.  (N.  Y.)  385, 
20  Am.  Dec.  623,  also  cited  by  appellant,  was  another  case  where  a 
contract  with  the  plaintiff  was  broken  because  of  defendant's  false 
representation  that  plaintiff  had  abandoned  all  intention  of  fulfilling  it. 
Lally  v.  Cantwell,  30  Mo.  App.  524,  also  cited  by  appellant,  was  an  ac- 
tion for  loss  of  employment.  The  court,  after  discussing  the  cases 
involving  the  relation  of  master  and  servant,  said:  "But  this  case 
falls  within  another  well-settled  principle,  which  is  that,  where  the 
interference  takes  the  form  of  false,  defamatory  statements — of  libel 
or  slander — an  action  will  lie  for  interference  with  a  relation  beneficial 
to  the  plaintiff,  although  the  relation  did  not  rest  in  contract,  and  al- 
though the  breach  of  it  by  the  party  who  was  procured  to  break  it  was 
not  actionable."  The  cases  are  too  numerous  to  be  cited  or  reviewed 
where  interference  with  business  or  contract  relations  through  acts  of 
violence,  nuisance,  threats,  deceit,  fraud,  libel,  and  slander  have  been 
redressed,  both  in  England  and  in  this  country.  Most  of  the  cases 
cited  by  appellant,  which  do  not  involve  the  relation  of  master  and 
servant,  will  be  found  of  the  character  above  mentioned,  though  in 
many  of  both  classes  Avill  be  found  expressions  which  more  or  less  di- 
rectly support  the  proposition  for  which  appellant  contends. 

Cases  involving  the  relation  of  master  and  servant,  though  that  re- 
lation is  now  created  solely  by  contract,  seem  to  stand  upon  different 
grounds  from  contracts  not  involving  that  relation.  Section  49  of  the 
Civil  Code,  entitled  "Protection  to  Personal  Relations,"  is  as  follows : 
"The  rights  of  personal  relation  forbid  (1)  the  abduction  of  a  husband 
from  his  wife,  or  of  a  parent  from  his  child;  (2)  the  abduction  of  a 
wife  from  her  husband,  or  of  a  child  from  a  parent  or  guardian  enti- 
tled to  its  custody,  or  of  a  servant  from  his  master;  (3)  the  seduction 
of  a  wife,  daughter,  orphan,  sister,  or  servant;  (4)  any  injury  to  a 
servant,  which  affects  his  ability  to  serve  his  master."  In  this  state, 
at  least,  no  analogy  favorable  to  appellant  can  be  drawn  from  cases 
involving  what  the  Code  itself  declares  to  be  "a  personal  relation" 


EXISTING   CONTRACTS   NOT   OF   EMPLOYMENT  259 

existing  between  master  and  servant.  The  Code  does  not  distinguish 
between  different  means  which  may  be  employed  to  disturb  or  destroy 
any  of  these  relations,  for  it  is  the  direct  interference  with  the  relation 
which  is  forbidden,  whether  the  relation  be  one  founded  in  natural 
right,  as  parent  and  child,  or  created  by  the  law,  as  guardian  and  ward, 
or  by  personal  contract,  as  between  master  and  servant ;  and  therefore 
does  not  depend  upon  the  mode  or  means  in  or  by  which  the  relation 
may  be  created.  It  is  not  the  mere  procuring  of  one  party  to  a  con- 
tract to  break  his  contract,  but  it  is  the  taking  away  from  or  depriving 
the  master  of  the  subject  of  the  contract,  or  that  which  the  master 
contracted  for,  viz.  the  services  of  the  servant. 

The  facts  alleged  in  the  complaint  do  not  bring  the  case  within  the 
principle  governing  cases  involving  the  relation  of  master  and  serv- 
ant, nor  of  those  other  cases  where  a  contract  is  procured  to  be  broken 
by  fraud,  deceit,  slander,  or  other  actionable  wrong,  as  in  Rice  v. 
Manley,  and  other  cases  above  noticed.  It  is  conceded  by  appellant, 
and  it  is  unquestionably  true,  that  "one  may  advise  a  friend  in  all 
honesty,  and  without  ill  will  to  the  other  contracting  party,  to  abide 
the  risks  of  breaking  an  onerous  or  mischievous  contract,  rather  than 
those  of  performing  it."  In  Bowen  v.  Hall,  6  Q.  B.  Div.  343,  Brett,  L. 
J.,  said:  "Merely  to  persuade  a  person  to  break  his  contract  may  not 
be  wrongful  in  law  or  in  fact."  This  being  true,  will  the  fact  that  the 
advice  or  persuasion  proceeds  from  malicious  motives  create  a  lia- 
bility where  the  same  advice  or  persuasion,  if  given  from  good  mo- 
tives, would  not  ?  In  considering  this  question  the  distinction  between 
civil  and  criminal  proceedings  must  not  be  overlooked.  In  the  dissent- 
ing opinion  of  Lord  Coleridge,  C.  J.,  in  Bowen  v.  Hall,  supra,  the 
question  above  presented  is  answered  thus:  "It  is,  I  believe,  also  ad- 
mitted, except  by  Sir  William  Erie,  whom  I  think  no  one  has  ever  fol- 
lowed, that  if  a  man  endeavors  to  persuade  another  to  break  his  con- 
tract, and  succeeds  in  his  endeavor,  yet  if  he  does  this  without  what 
the  law  calls  'malice/  the  damage  which  results,  however  great,  is  not 
in  itself  a  cause  of  action  against  him.  But  if  the  damage  which  is 
not  in  itself  actionable  be  joined  to  a  motive  which  is  not  in  itself  ac- 
tionable, the  two  together  form  a  cause  of  action.  This  seems  a 
strange  conclusion.  *  *  *  I  do  not  know,  except  in  the  case  of 
Lumley  v.  Gye,  2  El.  &  Bl.  216,  that  it  has  ever  been  held  that  the 
same  person,  for  doing  the  same  thing,  under  the  same  circumstances, 
with  the  same  result,  is  actionable  or  not  actionable,  according  to 
whether  his  inward  motive  was  selfish  or  unselfish,  for  what  he  did. 
I  think  the  inquiries  to  which  this  view  of  the  law  would  lead  are  dan- 
gerous and  inexpedient  inquiries  for  courts  of  justice.  Judges  are  not 
very  fit  for  them,  and  juries  are  very  unfit." 

It  is  a  truism  of  the  law  that  an  act  which  does  not  amount  to  a  le- 
gal injury  cannot  be  actionable  because  it  is  done  with  a  bad  intent; 
that  what  one  has  a  right  to  do  another  cannot  complain  of.  It  is 
conceded  that  one  may  lawfully  persuade  or  procure  another  to  break 


260  INTERFERENCE   WITH   CONTRACTUAL   RIGHTS 

his  contract  with  a  third  person,  "if  it  be  done  from  good  motives." 
We  think  the  qualification  has  no  place  in  the  proposition.  If  it  is 
right,  and  the  means  used  to  procure  the  breach  are  right,  the  motive 
cannot  make  it  a  wrong  any  more  than  a  good  motive  would  justify 
fraud,  deceit,  slander,  or  violence  to  effect  the  same  purpose.  Suppose 
A.  by  fraudulent  representations  induces  B.  to  sell  him  a  large  quanti- 
ty of  goods  upon  credit,  intending  to  defraud  B.  of  the  entire  value  of 
the  goods.  C.,  knowing  that  the  representations  are  false,  and  not 
caring  whether  B.  shall  lose  his  goods  or  not,  but  of  unmixed  malice 
and  ill  will  towards  A.,  procures  B.  to  refuse  to  deliver  the  goods,  by 
truthfully  informing  B.  of  the  falsity  of  the  representations  made  by 
A.  Will  it  be  said  that  C.  is  liable  in  an  action  brought  by  A.?  In 
Cooley  on  Torts  (2d  Ed.,  p.  832)  the  learned  author  says :  "Bad  mo- 
tive, by  itself,  then,  is  no  tort.  Malicious  motives  make  a  bad  act 
worse,  but  they  cannot  make  that  a  wrong  which  in  its  own  essence  is 
lawful.  When  in  legal  pleadings  the  defendant  is  charged  with  hav- 
ing wrongfully  done  the  act  complained  of,  the  words  are  only  words 
of  vituperation,  and  amount  to  nothing  unless  a  cause  of  action  is  oth- 
erwise alleged."  Again,  the  same  author  (at  page  836)  says :  "Motive 
generally  becomes  important  only  when  the  damages  for  a  wrong  are 
to  be  estimated.  It  then  comes  in  as  an  element  of  mitigation  or  ag- 
gravation, and  is  of  the  highest  importance."  That  the  mere  fact  that 
one  induces  another  to  break  a  contract  with  a  third  person  does  not 
give  a  right  of  action,  seems  to  have  been  directly  decided  in  McCann 
v.  Wolff,  28  Mo.  App.  447,  cited  by  appellant.  The  petition  alleged 
that  "by  some  means  unknown  to  plaintiff"  the  defendant  induced  a 
third  person  to  recede  from  a  .contract,  whereby  the  plaintiff  lost  com- 
missions. The  court  said:  "The  demurrer  was  properly  sustained. 
The  petition  charges  neither  malice  nor  fraud  on  defendant's  part,  and 
in  the  absence  of  both  an  action  of  this  kind  is  not  maintainable." 

Lumley  v.  Gye,  2  El.  &  Bl.  216;  Bowen  v.  Hall,  6  Q.  B.  Div.  333; 
and  Walker  v.  Cronin,  107  Mass.  555 — are  cited  and  largely  relied  up- 
on by  appellant.  In  Lumley  v.  Gye,  plaintiff,  the  proprietor  of  a  the- 
ater, employed  Miss  Wagner  to  sing  in  his  theater  for  a  specified  time. 
Defendant,  knowing  the  premises,  and  maliciously  intending  to  injure 
the  plaintiff,  enticed  and  procured  Wagner  to  refuse  to  perform,  by 
means  of  which  enticement  and  procurement  she  wrongfully  refused 
to  perform,  etc.  Defendant  demurred  to  the  declaration.  The  court 
held  that  the  relation  of  master  and  servant  existed,  and  the  decision 
was  placed  upon  that  ground;  Crampton,  J.,  saying,  however,  that 
he  did  not  wish  to  be  considered  as  deciding  "or  as  saying  that  in  no 
case  except  that  of  master  and  servant  is  an  action  maintained  for 
maliciously  inducing  another  to  break  his  contract  to  the  injury  of  the 
person  with  whom  such  contract  has  been  made."  Mr.  Justice  Coler- 
idge (now  lord  chief  justice  of  England)  dissented  in  a  long  and  able 
opinion,  holding  that  the  relation  of  master  and  servant  did  not  exist 
within  the  intent  of  the  statute  of  laborers  of  23  Edw.  III.,  in  which 


EXISTING   CONTRACTS  NOT  OF   EMPLOYMENT  261 

he  said  the  law  in  relation  to  the  seduction  of  servants  had  its  origin ; 
and  as  to  the  broader  proposition  argued  by  counsel  and  referred  to 
by  Crompton,  J.,  concluded:  "Merely  to  induce  or  procure  a  free 
contracting  party  to  break  his  covenant,  whether  done  maliciously  or 
not,  to  the  damage  of  another,  for  the  reason  I  have  stated,  is  not  ac- 
tionable." In  Bowen  v.  Hall,  supra,  a  contract  for  skilled  labor,  the 
case  was  decided  in  the  appellate  court  upon  the  authority  of  Lumley 
v.  'Gye,  Lord  Coleridge  again  dissenting.  The  opinions  of  the  major- 
ity of  the  court  go  far  to  sustain  the  broad  proposition  contended  for 
by  the  appellant  here.  Lumley  v.  Gye  was  declared  by  Lord  Coleridge, 
in  the  latter  case,  to  stand  alone.  The  reasoning  in  the  dissenting  opin- 
ions in  those  cases  seems  conclusive  and  satisfactory.  Walker  v.  Cron- 
in,  supra,  was  also  a  case  of  enticement  of  laborers.  The  question 
arose  upon  demurrer.  The  court  held,  after  stating  the  declaration: 
"This  sets  forth  sufficiently  (1)  intentional  and  willful  acts;  (2)  calcu- 
lated to  cause  damage  to  the  plaintiffs  in  their  lawful  business;  (3) 
done  with  the  unlawful  purpose  to  cause  such  damage  and  loss,  with- 
out right  or  justifiable  cause  on  the  part  of  the  defendant,  which  con- 
stitutes malice;  and  (4)  actual  damage  and  loss  resulting."  This  case 
does  not  seem  to  be  based  upon  the  relation  of  master  and  servant,  or 
that  of  a  contract  for  personal  services ;  but,  unless  it  can  be  sustained 
upon  that  ground  (a  point  not  necessary  to  consider),  the  decision  is 
clearly  wrong.  In  Payne  v.  Railroad  Co.,  13  Lea  (Tenn.)  507,  49 
Am.  Rep.  666,  plaintiff,  a  merchant,  had  a  large  and  profitable  trade 
with  defendant's  employes.  Defendant  circulated  a  notice  to  the  ef- 
fect that  any  of  its  employes  who,  after  that  date,  traded  with  plain- 
tiff, would  be  discharged.  This,  it  is  alleged,  was  done  maliciously, 
whereby  plaintiff  was  damaged.  The  court  held  that  an  act  not  un- 
lawful, done  in  a  manner  not  unlawful,  though  from  wicked  and  ma- 
licious motives,  and  causing  injury,  is  not  actionable.  That  no  con- 
tract existed  between  the  merchant  and  the  employes  does  not  affect 
the  principle  involved.  2  Greenl.  Ev.  §  453,  defines  a  malicious  act: 
"In  a  legal  sense,  any  unlawful  act,  done  willfully  and  purposely  to  the 
injury  of  another,  is,  as  against  that  person,  malicious." 

Two  cases  recently  decided  by  the  supreme  court  of  Kentucky  fully 
sustain  our  conclusion.  Bourlier  v.  Macauley,  91  Ky.  135,  15  S.  W. 
60,  11  L.  R.  A.  550,  34  Am.  St.  Rep.  171,  was  a  stronger  case  than 
Lumley  v.  Gye,  as  the  dramatic  performer  was  not  only  induced  to 
violate  her  agreement  with  plaintiff,  but  to  perform  in  defendant's 
theater  instead.  It  was  held  that  defendant  was  not  liable.  The  oth- 
er case— Chambers  v.  Baldwin,  91  Ky.  121,  15  S.  W.  57,  11  L.  R.  A. 
545,  34  Am.  St.  Rep.  165 — was  for  procuring  a  third  party  to  break 
his  contract  for  the  sale  of  a  crop  of  tobacco.  The  complaint  was  de- 
murred to.  The  questions  presented,  as  stated  by  the  court,  are: 
"First,  whether  one  party  to  a  contract  can  maintain  an  action  against 
a  person  who  has  maliciously  advised  and  procured  the  other  party 
to  break  it ;  second,  whether  an  act  lawful  in  itself  can  become  action- 


2G2  INTERFERENCE   WITH   CONTRACTUAL   RIGHTS 

able  solely  because  it  was  done  maliciously."  The  judgment  of  the 
court  below  sustaining  the  demurrer  was  affirmed.  Jones  v.  Stanly, 
76  N.  C.  355,  cited  by  appellant,  directly  sustains  appellant's  conten- 
tion, but  the  decision  is  based  upon  Haskins  v.  Royster,  70  N.  C.  601, 
16  Am.  Rep.  780  (the  only  case  cited),  which  case  involved  the  rela- 
tion of  master  and  servant,  and  was  decided  by  a  divided  court.  It 
may  be  questioned  whether  the  omission  to  allege  that  Thorn  knew  of 
the  contract  between  appellant  and  Nevvlands  is  not  fatal  to  the  com- 
plaint, but,  as  we  conclude  that  the  demurrer  was  properly  sustained 
upon  the  principal  point  made,  it  is  not  necessary  to  consider  it.  We 
are  of  the  opinion  that  the  judgment  appealed  from  should  be  affirmed. 

We  concur :  TEMPLE,  C. ;  SEARLS,  C. 

PER  CURIAM.  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  appealed  from  is  affirmed. 


INTERFERENCE  WITH  DOMESTIC  RELATIONS  263 

INTERFERENCE  WITH    DOMESTIC   RELATIONS 
I.  Injuries  to  Husband l 

BOLAND  v.  STANLEY. 

(Supreme  Court  of  Arkansas,  1909.    88  Ark.  562,  115  S.  W.  163,  129  Am. 

St  Rep.  114.) 

Action  by  R.  J.  Stanley  against  J.  T.  Boland  and  W.  H.  Robinson. 
Judgment  for  plaintiff,  and  defendants  appeal. 

The  appellee  sued  appellants,  alleging:  "That  Era  -Stanley  is  and 
at  all  the  times  hereinafter  mentioned  was  the  wife  of  this  plaintiff. 
That  on  or  about  the  7th  day  of  November,  1906,  while  the  plaintiff 
was  living,  cohabiting  with,  and  supporting,  her  at  Winthrop,  and  while 
they  were  living  together  happily  as  man  and  wife,  the  defendants, 
wrongfully  contriving  and  intending  to  injure  the  plaintiff  and  to  de- 
prive him  of  her  comfort,  society,  and  assistance,  maliciously,  will- 
fully, and  wickedly  induced  her  away  from  the  plaintiff's  and  her 
then  residence  in  the  town  of  Winthrop,  in  Little  River  county,  Ark., 
and,  after  so  inducing  her  away  from  her  and  plaintiff's  residence, 
forcibly  seized  her,  and  by  force  carried  her  to  the  residence  of  the 
defendant,  J.  T.  Boland,  in  Little  River  county,  and  have  ever  since 
said  date  forcibly  detained  plaintiff's  said  wife  and  harbored  her 
against  the  consent  of  this  plaintiff,  and  have  alienated  the  affection 
of  plaintiff's  said  wife  from  him,  and  caused  her  to  become  dissatis- 
fied with  her  married  state.  That,  by  reason  of  said  acts,  the  plain- 
tiff has  been  and  still  is  wrongfully  deprived  by  the  defendants  of  the 
comfort,  society,  and  aid  of  his  said  wife,  and  has  suffered  great  dis- 
tress of  both  mind  and  body  in  consequence  thereof,  and  great  dis- 
comfort, inconvenience,  and  anxiety  and  will  continue  to  so  suffer  all 
to  his  damage  in  the  sum  of  $10,000.  And  the  plaintiff  says  that,  by 
reason  of  said  willful,  malicious,  and  wicked  acts,  this  plaintiff  is  en- 
titled to  $10,000  as  exemplary  or  punitive  damages  against  said  de- 
fendants." 

The  answer  of  appellants  denied  all  the  material  allegations  of  the 
complaint,  and  set  up  that  plaintiff's  wife  of  her  own  free  will  and  ac- 
cord left  plaintiff  on  the  7th  day  of  November,  1906,  and  came  to 
her  father's  house,  J.  T.  Boland,  where  she  has  since  resided  and  made 
her  home,  and  that  no  one  has  persuaded  her  or  induced  plaintiff's  wife 
to  live  separate  and  apart  from  him,  and  that  no  one  has  alienated  or 
attempted  to  alienate  her  affections  from  him. 

The  evidence  on  behalf  of  appellee  tended  to  show  that  appellee  on 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  95-98. 


264  INTERFERENCE   WITH   DOMESTIC  RELATIONS 

the  4th  of  November,  1906,  married  Era  Boland,  the  daughter  of  ap- 
pellant J.  T.  Boland.  Appellee  married  at  his  father's  house  about 
11  o'clock  Sunday  night.  He  remained  with  his  wife  at  his  father's 
house  for  a  few  days.  The  next  day  after  the  marriage  he  and  his 
wife  went  to  one  Grider's,  a  neighbor.  While  there  appellant,  Boland, 
came  and  said  to  his  daughter:  "Era,  I  have  come  to  bring  you  a 
letter  from  your  dear  old  father,  the  last  one  you  will  ever  get  from 
him.  You  are  laughing  on  one  side  of  your  face  to-day,  but  you 
will  be  laughing  on  the  other  side  to-morrow."  He  gave  the  letter 
to  his  daughter,  and  said  to  appellee:  "Young  man,  don't  say  any- 
thing to  me,  don't  say  a  word.  I  could  eat  three  like  you  before  night." 
He  remained  about  five  minutes.  After  he  left,  appellee  read  the 
letter.  Its  contents  were  as  follows :  "Era  you  have  played  hell  with 
your  ducks.  You  are  laughing  on  one  side  of  your  face  to-day,  but 
you  will  be  laughing  on  the  other  side  to-morrow.  I  don't  want  you 
to  ever  come  inside  of  my  yard  again,  not  even  in  sickness  or  death. 
Don't  you  ever  speak  to  your  sisters  or  your  brothers  again.  You 
have  disgraced  yourself,  and  you  are  no  more  your  father's  child." 
The  day  after  the  marriage  appellant  Robinson  went  to  a  near  neigh- 
bor of  Boland,  and  asked  him  what  he  thought  of  Era's  marriage,  and 
said  something  about  Miss  Era  disgracing  herself  by  taking  Stanley. 
He  said  Mr*  Boland  would  try  to  get  her  back,  and  that  he  was  going 
to  do  all  he  could  to  help  him.  Robinson  often  went  to  Boland's  house. 
They  were  musicians,  and  made  music  together.  Robinson  was  at 
Boland's  house  Tuesday  night  after  the  marriage.  Wednesday  morn- 
ing he  went  back  to  Boland's.  Robinson  and  Boland's  wife,  oldest 
daughter,  and  little  boy  went  in  Boland's  wagon  over  to  Stanley's 
where  appellee  lived.  Boland  was  at  home  when  they  left  to  go  to 
Stanley's,  and  he  was  there  when  they  returned.  When  they  reached 
Stanley's,  they  stopped  the  wagon  at;  the  gate  about  50  yards  from 
Stanley's  house.  Robinson  went  into  the  house,  and  told  appellee's 
wife  that  her  mother  was  out  there  and  wanted  to  see  her.  Mrs.  Stan- 
ley went  out  to  the  wagon,  and  talked  to  her  mother  and  sister  and  Mr. 
Robinson.  Then  they  carried  her  back  into  the  house.  Robinson  had 
her  by  one  arm  and  her  sister  by  the  other.  Robinson  was  holding 
her  up.  When  she  got  into  the  house,  she  lay  on  the  bed,  crying.  Her 
mother  and  sister  gathered  up  her  things  in  the  house.  Then  Robin- 
son raised  her  up  off  the  bed,  and  took  her  off.  They  took  her  by  the 
arms  and  led  her  out  to  the  wagon.  She  got  in  the  wagon.  When 
Robinson  took  her  up  to  carry  her  to  the  wagon,  she  did  not  resist  in 
any  way,  or  act  like  she  did  not  want  to  go.  She  sat  on  the  back 
seat  in  the  wagon  between  her  mother  and  sister.  The  little  brother 
and  Robinson  sat  on  the  front  seat,  and  drove  the  wagon.  Just  as 
the  wagon  was  leaving,  Stanley  came  up.  They  met  him  15  or  20 
steps  from  the  gate.  As  they  drove  away,  Stanley's  wife  hollooed  back 
to  him,  and  said  she  was  going  home  to  get  her  things. 


INJURIES  TO   HUSBAND  265 

A  witness  who  saw  them  pass  the  house  in  the  wagon  going  towards 
Boland's  stated  that  Mrs.  Stanley  looked  like  she  had  been  crying; 
that  her  appearance,  conduct,  and  words  indicated  that  she  was  sad 
and  dejected.  The  appellee  testified  that  his  wife  lived  with  him 
from  Sunday  night  when  they  were  married  till  Wednesday  when  they 
came  and  took  her  away ;  that  she  seemed  to  be  as  happy  as  she  could 
be.  She  was  that  way  Wednesday  morning  when  he  left  home  for  his 
work  making  ties.  They  had  talked  about  keeping  house  on  Tuesday 
night,  and  the  next  day  he  was  going  to  get  a  housekeeping  outfit  and 
move  to  themselves.  He  returned  from  his  work  Wednesday  morning 
between  11  and  12  o'clock,  and  saw,  as  he  came  up,  his  wife  going 
off  in  the  wagon  with  Robinson  and  the  Boland  folks.  He  under- 
stood from  what  she  said  to  him  as  they  drove  off  that  she  was  going 
home  after  her  things.  When  he  went  into  the  house,  he  found  that  the 
few  things  she  had  there  were  gone.  Then  he  first  discovered  that 
she  was  leaving  him.  He  went  to  a  neighbor's,  and  asked  him  to 
go  over  there.  He  did  not  get  her  to  come  back.  He  did  not  go  over 
to  Boland's  himself,  because  he  was  warned  several  times  not  to  go 
over  there.  He  tried  several  times  to  get  some  one  to  go  with  him, 
but  they  would  not  go.  He  had  not  seen  his  wife  since  that  time  to 
speak  to  her,  had  seen  her  with  her  father  and  sisters,  but  never  alone. 
Appellee  was  20  years  old  when  he  married.  He  loved  his  wife,  and 
he  says  she  seemed  to  love  him.  He  sent  some  of  his  relations  over 
to  Boland's  to  get  his  wife  to  come  back.  He  wanted  to  talk  to  his 
wife  after  she  left,  but  could  not  get  the  chance. 

On  behalf  of  appellants,  appellant  Boland  testified  that  he  had  done 
nothing  to  induce  the  wife  of  Stanley  to  return  to  his,  Boland's,  house, 
or  to  induce  her  to  stay  there.  After  his  daughter  ran  away,  he  went 
up  there  and  gave  her  a  letter,  and  talked  to  her,  and  told  her  never 
to  come  back  home  any  more,  and  told  her,  under  no  circumstances, 
would  he  ever  forgive  her  for  doing  like  she  did.  He  never  spoke 
to  her  about  coming  home  at  any  time.  Since  she  came  home  "she 
had  been  just  like  she  always  was,  occupied  the  same  room,  and  every- 
thing just  like  she  was  before."  Wh'en  he  saw  his  daughter  return, 
he  was  surprised.  "It  was  like  a  clap  of  thunder  from  a  clear  sky." 
"She  came  back  home  on  her  own  consent."  The  young  man,  Stanley, 
had  never  said  anything  to  him  about  the  girl  coming  back. 

WOOD,  J.2  *  *  *  The  loss  of  what  is  termed  in  law  "consorti- 
um"— that  is,  the  society,  companionship,  conjugal  affections,  fellow- 
ship, and  assistance  of  the  wife — is  the  principal  basis  for  actions  of 
this  kind.  Tiffany's  Persons  and  Domestic  Relations,  p.  75,  and  au- 
thorities cited  in  note;  15  A.  &  E.  Enc.  Law  (2d  Ed.)  862  b,  note  6. 
Whoever  invades  the  hallowed  precincts  of  a  home,  and  without  jus- 
tifiable cause,  by  any  means  whatsoever,  severs  the  sacred  tie  that  binds 
husband  and  wife,  alienating  her  affections  from  him,  and  depriving 

«  A  portion  of  the  opinion  dealing  with  an  error  in  the  instructions  is  omitted. 


266  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

him  of  the  aid,  comfort,  and  happiness  of  a  loyal  union  between  them, 
is  liable  in  civil  damages  for  his  wrongful  conduct.  Rodgers,  Dom. 
Rel.  §  177;  Schouler,  Dom.  Rel.  §  41 ;  Tiffany,  Per.  &  Dom.  Rel.  74; 
15  A.  &  E.  Ency.  Law,  862.  In  such  cases,  whether  or  not  there  were 
malevolent  or  improper  motives  is  always  a  material  consideration.  In 
case  of  a  stranger  in  blood,  the  causes  must  be  extreme  that  will 
warrant  him  in  interfering  with  the  relation  of  husband  and  wife. 
If  he  by  advice  or  enticement  induces  a  wife  to  leave  her  husband,  or 
takes  her  away  with  or  without  her  consent,  and  encourages  her  to 
remain  from  him,  or  harbors  and  protects  her  from  him,  he  does  these 
things  at  his  peril,  and  the  burden  is  on  him  to  show  good  cause  and 
good  faith  for  his  conduct.  As  is  said  by  Mr.  Rodgers:  "It  would 
seem  upon  principle  to  be  rare,  indeed,  if  the  motive  by  a  stranger 
in  breaking  up  a  family  could  be  a  good  one."  Rodgers,  Dom.  Rel. 
§  176;  1  Jaggard  on  Torts,  467;  Tiff.  Per.  &  Dom.  Rel.  76;  Schouler, 
Dom.  Rel.  41,  and  cases  cited  by  these.  But  the  rule  is  different  in 
case  of  a  parent.  In  Hutcheson  v.  Peck,  5  Johns.  (N.  Y.)  196,  where 
a  father  harbored  his  daughter,  Chancellor  Kent  says:  "A  father's 
house  is  always  open  to  his  children,  and,  whether  they  be  married  or 
unmarried,  it  is  still  to  them  a  refuge  from  evil  and  a  consolation  in 
distress.  Natural  affection  establishes  and  consecrates  this  asylum. 
I  should  require,  therefore,  more  proof  to  sustain  the  action  against 
the  father  than  against  the  stranger.  It  ought  to  appear  either  that  he 
detains  the  wife  against  her  will,  or  that  he  entices  her  away  from, 
her  husband  from  improper  motives.  Bad  or  unworthy  motives  can- 
not be  presumed.  They  ought  to  be  positively  shown  or  necessarily 
deduced  from  the  facts  and  circumstances  detailed."  See  Burnett  v. 
Burkhead  and  Wife,  21  Ark.  77,  76  Am.  Dec.  358;  Trumbull  v.  Trum- 
bull,  71  Neb.  186,  98  N.  W.  683,  8  Ann.  Cas.  812 ;  Payne  v.  Williams, 
4  Baxt.  (Tenn.)  585,  and  other  cases  cited  in  Tiffany's  Persons  & 
Domestic  Rel.  p.  77,  note  116;  Brown  v.  Brown,  124  N.  C.  19,  32 
S.  E.  320,  70  Am.  St.  Rep.  574;  Glass  v.  Bennett,  89  Tenn.  478,  14 
S.  W.  1085,  and  cases  cited.  Parents  will  not  be  protected  under  the 
above  doctrine  unless  they  acted  from  proper  motives.  Holtz  v.  Dick, 
42  Ohio  St.  23,  51  Am.  Rep.  791.  In  actions  of  this  character,  "the 
term  'malice'  does  not  necessarily  mean  that  which  must  proceed  from 
a  spiteful,  malignant,  or  revengeful  disposition,  but  a  conduct  injuri- 
ous to  another,  though  proceeding  from  an  ill-regulated  mind  not  suf- 
ficiently cautious  before  it  occasions  the  injury.  If  the  conduct  was 
unjustifiable  and  actually  caused  the  injury  complained  of,  malice  in 
law  would  be  implied."  The  terms  "malice"  and  "improper  motives," 
as  here  used,  mean  the  same  thing.  Brown  v.  Brown,  supra ;  Tiffany's 
Persons  &  Dom.  Rel.  76.  If  no  enticements  are  held  out  to  the  wife 
to  leave  her  husband  or  to  cease  to  love  him,  and  nothing  is  said  or 
done  by  a  third  party  to  cause  her  to  abandon  him,  her  act  being  of 
her  own  accord  and  for  reasons  best  known  to  herself,  then  there  is 
no  cause  of  action  for  civil  damages  against  any  one  for  alienation 


INJURIES  TO  WIFE  267 

of  affections;  for  in  such  case  the  estrangement  would  be  voluntary 
and  not  the  fault  of  any  third  party.  Rodgers,  Dom.  Rel.  p.  134,  and 
cases  cited.  Instructions  presenting  these  principles  of  the  law  were 
given  by  the  court,  and  the  charge  upon  the  whole,  except  in  the  par- 
ticular wherein  the  error  has  been  pointed  out,  correctly  submitted  the 
issues  to  the  jury.  *  *  * 

For  the  error  indicated,  reverse  and  remand  for  new  trial,  as  to  the 
appellant  Boland.  As  to  the  appellant  Robinson,  the  instruction  was 
not  prejudicial  error,  and  the  judgment  as  to  him  is  affirmed. 


II.  Injuries  to  Wife8 


FLANDERMEYER  v.  COOPER. 

(Supreme  Court  of  Ohio,  1912.     85  Ohio  St.  327,  98  N.  E.  102,  40  L.  R.  A. 

[N.  S.]  360.) 

On  the  12th  day  of  October,  1907,  Lillie  M.  Cooper  filed  her  amended 
petition  in  the  court  of  common  pleas  of  Cuyahoga  county  against 
Henry  H.  Flandermeyer,  averring,  in  substance,  that  she  was  the  wife 
of  Charles  A.  Cooper,  living  and  consorting  with  him  as  her  husband, 
as  the  defendant  well  knew,  until  the  peace  and  welfare  of  her  home 
was  destroyed  by  the  unlawful,  willful,  negligent,  malicious,  and 
wrongful  acts  of  the  defendant,  in  this :  That  about  the  month  of 
June,  1905,  the  defendant  was  a  pharmacist,  the  proprietor  of  and 
conducting  a  drug  store  in  the  city  of  Cleveland;  that  with  the  full 
knowledge  of  the  poisonous  effects  of  morphine  to  create  a  growing 
desire  and  craving  for  additional  quantities  thereof,  and  without  com- 
plying with  the  statutes  of  the  state  of  Ohio,  and  without  due  inquiry 
as  to  whether  the  said  Charles  A.  Cooper  was  aware  of  the  insidious 
and  dangerous  character  of  said  morphine,  or  whether  said  Cooper 
was  then  in  fact  practically  ignorant  of  the  effect  of  morphine,  well 
knowing  that  this  plaintiff  was  his  wife,  and  that  she  was  using  every 
available  means  to  cure  and  counteract  her  husband's  act  of  using 
morphine,  did  knowingly,  wrongfully,  and  unlawfully  sell  and  ad- 
minister morphine  to  the  said  Charles  A.  Cooper,  although  she  fre- 
quently protested  to  the  defendant  against  his  further  selling  and 
administering  such  morphine,  and  expressly  warned  and  prohibited 
said  defendant  from  continuing  said  sales  or  administrations  of  mor- 
phine to  her  husband,  well  knowing  that  the  constant  use  of  this  drug 
had  created  an  irresistible  appetite  on  the  part  of  Cooper,  well  know- 
ing that  said  drug  was  not  being  used  for  medicinal  purposes,  but 

s  For  discussion  of  principles,  see  Chapin  on  Torts,  §  96. 


2G8  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

through  and  on  account  of  the  craving  that  had  fastened  itself  upon 
him  by  long  use  thereof,  whereby  he  was  becoming,  and  had  become,  a 
morphine  fiend,  and  was  thereby  wrecking  his  mind  and  body;  that 
said  defendant,  notwithstanding  the  protests  and  warning  of  plaintiff, 
continued  to  sell  and  administer  quantities  of  morphine  to  Charles  A. 
Cooper,  said  sales  becoming  more  frequent  until  they  occurred  almost 
every  day,  and  being  in  bulk  quantities  less  than  the  minimum  original 
package  of  one-eighth  ounce,  as  provided  by  law,  so  that  said  Cooper 
became  a  slave  to  the  morphine  habit,  and  that  he  was  thereby  de- 
prived of  moral  sensibility,  and  was  unfitted  and  incapable  to  give  the 
affection,  society,  companionship,  and  consortium  which  he  had  for- 
merly given  and  which  were  due  to  plaintiff,  as  his  wife,  and  thereby 
knowingly,  willfully,  and  wrongfully  depriving  plaintiff  of  the  affec- 
tion, society,  companionship,  and  consortium  of  her  husband;  and 
that  finally,  in  consequence  of  defendant's  unlawful  and  willful  act, 
the  said  Charles  A.  Cooper,  on  the  16th  day  of  June,  1906,  was  com- 
mitted to  an  asylum  and  there  detained  for  about  one  year,  and  alleged 
that  she  had  been  damaged  by  reason  of  the  defendant's  unlawful  and 
willful  act  in  the  sum  of  $2,000,  for  which  she  prayed  damages. 

At  the  trial  the  jury  returned  a  verdict  for  the  plaintiff  in  the  sum 
of  $500. 

DONAHUE,  J.*  The  primary  and  most  important  question  presented 
by  this  record  is  whether  a  wife  has  a  common-law  right  of  action 
against  one  who  wrongful'y  and  maliciously  interferes  with  the  marital 
relationship  and  deprives  her  of  the  society,  companionship,  and  con- 
sortium of  her  husband.  In  the  absence  of  a  statute  authorizing  such 
recovery,  her  right  to  maintain  this  action  rests  wholly  on  the  common 
law,  and  if  the  common  law  does  not  afford  her  a  right  of  action, 
then  she  cannot  maintain  this  suit,  and  the  demurrer  to  the  petition 
should  have  been  sustained. 

It  is  very  clear  that  originally  the  common  law  recognized  no  such 
right  in  the  wife.  By  the  primitive  law,  the  only  member  of  the  fam- 
ily deemed  to  be  harmed  by  an  unjustifiable  disturbance  of  the  family 
relation  was  the  head  of  the  family.  Blackstone,  in  his  Commentaries 
(volume  3,  pp.  142,  143),  says  that  these  torts  directed  against  the  peace 
and  tranquility  of  domestic  relations  are  actionable  only  when  com- 
mitted against  the  husband.  In  the  case  of  Lynch  v.  Knight,  9  H.  L. 
577,  Lord  Wensleydale  held  that  "no  recovery  could  be  had  without 
joining  the  husband  in  the  suit,  who  himself  must  receive  the  money 
which  would  not  advance  the  wife's  remedy,  and  to  allow  her  to  recover 
in  such  an  action  would  involve  the  absurdity  that  the  husband  might 
also  sue  for  such  a  cause." 

It  must  be  remembered,  however,  that  this  interpretation  of  the 
common  law,  with  reference  to  the  wife's  right  to  maintain  an  action 

*  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


INJURIES   TO   WEFE  269 

of  this  character,  obtained  upon  the  theory  that  the  wife's  personality 
merged  in  that  of  her  husband's,  and  that  she  was  not  then  entitled  to 
hold  property  separate  and  apart  from  her  husband,  and  not  authorized 
to  bring  suit  in  her  own  name.  Now  the  legal  status  of  the  wife  has 
been  changed  by  legislation.  Her  legal  personality  is  no  longer  merged 
in  that  of  her  husband.  By  force  of  the  several  statutes  in  this  state 
in  reference  thereto,  a  husband  has  no  longer  any  dominion  over  the 
separate  property  of  his  wife,  and  she  may  maintain  an  action  in  her 
own  name,  without  joining  her  husband  in  the  suit.  The  right  of  ac- 
tion growing  out  of  an  injury  to  her  personal  rights  is  her  separate 
property  for  which  she  may  maintain  an  action  in  her  own  name.  The 
right  of  the  wife  to  the  consortium  of  the  husband  is  one  of  her  per- 
sonal rights.  It  therefore  follows  that  the  principle  of  the  common 
law  which  allowed  a  right  of  action  to  the  husband  for  the  invasion  of 
this  right,  now,  under  the  changed  condition  of  affairs  and  in  view  of 
the  present  legal  status  of  the  wife,  applies  to  her  equally  with  the 
husband. 

It  is  said  by  Burdick,  in  his  Law  of  Torts,  at  page  276,  that :  "With 
this  change  in  her  legal  status  came  naturally  a  change  in  the  judicial 
conception  of  her  marital  wrongs.  As  she  could  maintain  an  action 
in  her  own  name,  and  damages  recovered  would  be  her  sole  and  sep- 
arate property,  one  of  the  chief  objections  urged  by  Lord  Wensley- 
dale  disappeared.  As  the  law  now  recognized  her  legal  equality  with 
her  husband,  Blackstone's  reasoning,  based  upon  the  superiority  of  one 
party  and  the  inferiority  of  the  other  party  to  the  marital  relation,  had 
no  longer  the  foundation  of  even  a  fiction." 

A  statutory  right  cannot  change  except  by  action  of  the  lawmaking 
power  of  a  state.  But  it  is  the  boast  of  the  common  law  that:  "Its 
flexibility  permits  its  ready  adaptability  to  the  changing  nature  of  hu- 
man affairs."  So  that  whenever,  either  by  the  growth  or  development 
of  society,  or  by  the  statutory  change  of  the  legal  status  of  any  individ- 
ual, he  is  brought  within  the  principles  of  the  common  law,  then  it  will 
afford  to  him  the  same  relief  that  it  has  theretofore  afforded  to  others 
coming  within  the  reason  of  its  rules.  If  the  wrongs  of  the  wife  are 
the  same  in  principle  as  the  wrongs  of  the  husband,  there  is  now  no 
reason  why  the  common  law  should  withhold  from  her  the  remedies  it 
affords  to  the  husband. 

Hale  on  Torts,  on  page  278,  says:  "In  natural  justice,  no  reason 
exists  why  the  right  of  the  wife  to  maintain  an  action  against  the  se- 
ducer of  her  husband  should  not  be  coextensive  with  his  right  of  ac- 
tion against  her  seducer.  The  weight  of  authorities  and  the  tendency 
of  the  legislation  strongly  incline  to  the  latter  opinion." 

1  Cooley  on  Torts  (3d  Ed.)  p.  477,  says :  "Upon  principle  this  right 
in  the  wife  is  equally  valuable  to  her  as  property,  as  is  that  of  the 
husband  to  him.  Her  right  being  the  same  as  his  in  kind,  degree,  and 


270  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

value,  there  would  seem  to  be  no  valid  reason  why  the  law  should 
deny  to  her  the  redress  which  it  affords  to  him.  *  *  *  The  gist 
of  the  action  is  the  loss  of  consortium,  which  includes  the  husband's 
society,  affection,  and  aid.  The  wife  may  have  the  action  though  she 
continues  to  live  with  her  husband,  and  it  is  held  that  she  may  main- 
tain it  after  a  divorce  from  him." 

This  question,  however,  is  fully  settled  in  this  state  in  the  case  of 
Westlake  v.  Westlake,  34  Ohio  St.  621,  32  Am.  Rep.  397.  The  first 
paragraph  of  the  syllabus  is  as  follows :  "A  wife  may  maintain  an 
action  for  the  loss  of  the  society  and  companionship  of  her  husband, 
against  one  who  wrongfully  induces  and  procures  her  husband  to 
abandon  or  send  her  away."  In  the  opinion,  on  page  627  of  34  Ohio 
St.  (32  Am.  Rep.  397),  Gilmore,  J.,  says:  "If,  in  this  state,  the  com- 
mon-law dominion  of  the  husband  over  the  property  and  personal 
rights  of  the  wife  has  been  taken  away  from  him  and  conferred  upon 
her,  and  remedies  in  accordance  with  the  spirit  of  the  civil  law  have 
been  expressly  given  to  the  wife  for  the  redress  of  injuries  to  her 
person,  property,  and  personal  rights,  all  of  which  I  hope  to  show  has 
been  done,  then  it  must  follow  that  she  may  maintain  an  action  in 
her  own  name  for  the  loss  of  the  consortium  of  her  husband  against 
one  who  wrongfully  deprives  her  of  it,  unless  the  consortium  of  her 
husband  is  not  one  of  her  personal  rights.  *  *  *  Under  our  leg- 
islation^ the  benefit  which  the  wife  has  in  the  consortium  of  the  hus- 
band is  equal  to  that  which  the  husband  has  in  the  consortium  of  the 
wife.  If,  at  common  law,  the  husband  could  maintain  an  action  for 
the  loss  of  the  consortium  of  the  wife,  I  can  see  no  reason  why,  under 
our  law,  the  wife  cannot  maintain  an  action  for  the  loss  of  the  con- 
sortium of  the  husband.  *  *  *  Each  acquires  a  personal  as  well 
as  legal  right  to  the  conjugal  society  of  the  other,  for  the  loss  of 
which  either  may  sue  separately." 

There  can  be  no  reasonable  contention  but  that  the  wife  suffers  the 
same  injury  from  the  loss  of  consortium  as  the  husband  suffers  from 
that  cause.  His  right  is  not  greater  than  hers.  Each  is  entitled  to 
the  society  and  affection  of  the  other.  The  rights  of  both  spring  from 
the  marriage  contract  and  in  the  very  nature  of  things  must  be  mutual, 
and  while  this  was  always  true  of  the  marriage  relation,  yet  there  was 
a  time  in  the  history  of  our  jurisprudence  when  the  legal  status  of  the 
wife  was  such  that  she  could  not,  at  common  law,,  maintain  an  action 
of  this  character.  Now  her  legal  status  is  the  same  as  that  of  her 
husband.  She  has  the  same  right  to  the  control  of  her  separate  prop- 
erty, the  same  right  to  sue  in  her  own  name,  and,  in  a  word,  is  in  the 
full  enjoyment  of  every  right  that  her  husband  enjoys,  so  that  she 
comes  clearly  within  the  principles  of  the  common  law  that  allow  a 
right  of  action  by  the  husband  for  damages  for  the  loss  of  the  con- 
sortium of  his  wife.  Either  we  must  hold  that  the  common  law  is  fixed, 


INJURIES  TO   WIFE  271 

unchangeable,  and  immutable,  that  it  possesses  no  such  flexibility  as 
will  permit  its  ready  adaptability  to  changing  conditions  of  human 
affairs,  or  that  when  every  reason  and  every  theory  for  denying  the 
wife  the  same  rights  as  the  husband  has  entirely  disappeared  from 
our  jurisprudence,  that  she  is  now  equally  entitled  with  her  husband 
to  every  remedy  that  the  common  law  affords,  and  we  have  no  hesita- 
tion in  adopting  the  latter  view. 

It  is  insisted,  however,  that  neither  husband  nor  wife  would  have  a 
right  of  action  under  the  facts  and  circumstances  of  this  case,  and 
our  attention  is  called  to  the  fact  that  an  enabling  statute  was  neces- 
sary in  order  to  permit  a  wife  to  recover  damages  to  means  of  support 
by  reason  of  intoxication  caused  by  sales  of  liquor  to  the  husband. 
This,  however,  is  not  a  similar  case.  This  is  not  an  action  for  dam- 
ages for  loss  of  support,  or  loss  of  the  earning  capacity  of  the  hus- 
band, but  is  wholly  an  action  for  damages  for  loss  of  consortium. 
Consortium  is  denned  to  be  "the  conjugal  fellowship  of  husband  and 
wife,  and  the  right  of  each  to  the  company,  co-operation  and  aid  of 
the  other  in  every  conjugal  relation."  Bigaouette  v.  Paulet,  134  Mass. 
123,  45  Am.  Rep.  307.  This  right  is  invaded  whenever  a  third  person, 
through  machination,  enticement,  seduction,  or  other  wrongful,  inten- 
tional, and  malicious  interference  with  the  marriage  relation,  deprives 
the  husband  or  wife  of  the  consortium  of  the  other.  The  remedy  for 
an  invasion  of  these  rights  is  not  in  the  nature  of  the  action  for  dam- 
ages to  means  of  support  provided  by  the  statutes  relating  to  the  sale 
of  intoxicating  liquors.  It  is  said  by  Tiffany  on  Persons  and  Domestic 
Relations  (2d  Ed.)  p.  80:  "Whatever  may  have  been  the  principle, 
originally,  upon  which  this  class  of  actions  was  maintained,  it  is  cer- 
tain that  the  weight  of  modern  authority  bases  the  action  on  the  loss 
of  consortium.  *  *  *  The  suit  is  not  regarded  in  the  nature  of 
an  action  by  a  master  for  the  loss  of  the  services  of  his  servant,  and 
it  is  not  necessary  that  there  should  be  any  pecuniary  loss  whatever." 
No  enabling  statute  was  necessary  to  authorize  a  husband  to  maintain 
an  action  for  the  loss  of  consortium,  and  if  we  are  right  in  our  con- 
clusion that  the  wife  is  now  equally  entitled  to  maintain  this  action, 
this  contention  of  the  plaintiff  in  error  is  completely  answered. 

The  further  claim  is  made  by  counsel  for  plaintiff  in  error  that,  to 
sustain  an  action  for  injury  to  one's  consortium,  the  alleged  injury  must 
be  the  result  of  a  force  exerted  directly  upon  the  marriage  relation 
for  the  purpose  of  injuring  the  plaintiff's  consortium,  and  the  act  of 
the  consort  responding  to  that  force  must  not  be  voluntary,  citing 
Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791.  In  that  case  this 
court  declared  that,  "where  damages  are  asked  for  the  alienation  of 
affection,  each  case  must  stand  on  its  own  facts."  If  the  proposition 
that  "the  act  of  the  consort  responding  to  that  force  must  not  be 
voluntary"  were  to  be  adopted  as  an  arbitrary  rule  of  law  in  this  state 


272  INTERFERENCE   WITH  DOMESTIC  RELATIONS 

controlling  each  and  every  case,  then  few  or  no  such  actions  as  this 
could  be  maintained.  In  the  case  of  Bigaouette  v.  Paulet,  supra,  the 
court  held  that  "a  husband  may  maintain  an  action  for  the  loss  of  the 
consortium  of  his  wife  against  the  person  who  has  criminal  conversa- 
tion with  her,  whether  such  conversation  is  with  or  without  her  con- 
sent, and  although  the  act  caused  no  actual  loss  of  her  services  to 
him." 

The  case  of  Hart  v.  Knapp,  76  Conn.  135,  55  Atl.  1021,  100  Am. 
St.  Rep.  989,  was  a  suit  by  the  wife  against  another  woman  for  the 
alienating  of  her  husband's  affection  by  acts  of  illicit  intercourse.  In 
that  case  the  claim  was  made  by  the  defendant  that  the  wrong  was  not 
her  wrong,  but  that  of  the  husband,  that  her  misconduct  was  induced 
by  the  persuasion  of  plaintiff's  husband ;  but  the  court  disposes  of  this 
contention  in  this  language :  "In  what  she  did  with  the  husband,  she 
did  with  full  knowledge  that  it  was  wrongful,  and  that  it  would,  as 
the  plaintiff  claims  it  did,  result  in  harm  to  the  plaintiff.  The  gist 
of  the  advice  set  up  in  the  requests  is  that  the  defendant  did  a  great 
wrong  by  the  persuasion  of  the  husband.  We  know  of  no  rule  of  law, 
civil  or  criminal,  that  absolves  her  from  liability  for  such  wrong  be- 
cause of  such  persuasion."  *  *  * 

The  judgment  of  the  circuit  court  is  affirmed. 

Judgment  affirmed. 

SPEAR,  PRICE,  and  JOHNSON,  JJ.,  concur. 


III.  Injuries  to  Parent5 


BUTTERFIELD  v.  ASHLEY. 
(Supreme  Judicial  Court  of  Massachusetts,  1850.    6  Gush.  249.) 

This  was  an  action  of  trespass  on  the  case,  for  enticing  away  the 
plaintiff's  son  and  servant  from  his  employment.  The  action  was  tried 
in  the  court  of  common  pleas,  before  Perkins,  J.,  and  came  into  this 
court  upon  exceptions  to  the  judge's  instructions  to  the  jury. 

METCALF,  J.  The  question  now  to  be  decided  is  whether  the  instruc- 
tions given  to  the  jury  upon  the  evidence  introduced  at  the  trial  were 
warranted  by  the  law  of  the  case. 

The  declaration  contains  a  single  count  in  which  it  is  alleged  that  the 
defendants,  knowing  that  the  plaintiff's  son  was  in  his  employment  and 
service,  enticed  him  into  their  employment,  put  him  on  board  a  vessel, 
and  sent  him  to  sea  on  a  whaling  voyage.  The  evidence  was  that  the  son 
left  his  father's  house  in  New  Hampshire,  without  his  father's  consent 
and  went  to  New  Bedford ;  that  he  there  applied  to  the  defendants  to 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  97. 


INJURIES  TO  PARENT  273 

employ  him  in  a  whaling  vessel ;  that  they,  knowing  him  to  be  a  minor, 
at  first  refused  to  employ  him ;  but  that,  at  his  urgent  solicitation  and 
upon  his  representation  that  he  had  his  father's  consent  to  go  on  a 
voyage,  they  took  him  into  their  employment  and  sent  him  to  sea. 
Upon  this  evidence  the  jury  were  instructed  that  the  defendants  were 
liable  in  this  action,  if  the  plaintiff  never  assented  to  his  son's  being 
employed  by  them,  although  they  honestly  believed  that  he  had  given 
his  full  consent.  And  we  are  of  opinion  that  these  instructions  were 
wrong. 

A  master  may  maintain  an  action  on  the  case  against  one  who,  know- 
ing that  another  is  his  servant,  entices  him  away  from  his  service, 
or  retains  and  employs  him,  after  he  has  wrongfully  left  that  service 
without  being  enticed  away;  and  also  against  one  who  continues  to 
employ  his  servant,  after  notice  that  he  is  such,  though  the  defendant, 
at  the  time  of  retaining  or  employing  him,  did  not  know  him  to  be  a 
servant;  and  a  father  is  the  master  of  his  minor  child,  within  these 
rules  of  law.  The  books  of  entries  contain  forms  of  declarations  adapt- 
ed to  these  three  distinct  causes  of  action.  And  a  plaintiff  generally 
inserts  at  least  two  counts  in  his  declaration;  one  for  enticing,  and 
another  for  employing  or  harboring;  so  that  he  may  succeed  on  the 
latter,  though  he  may  fail  to  support  the  former.  But  in  either  form  of 
declaring,  it  is  a  material  and  necessary  allegation,  that  the  defendant 
knew,  at  the  time  of  enticing,  employing,  or  harboring,  that  the  party 
enticed  away,  employed,  or  harbored,  was  the  servant  of  the  plaintiff, 
or  that  he  afterwards  had  notice  thereof,  and  continued  to  employ  or 
harbor  the  servant,  after  such  notice.  And  such  knowledge  or  notice 
must  be  proved,  in  order  to  support  the  action.  See  Wentw.  PI.  438 ; 
2  Chit.  PI.  (6th  Amer.  Ed.)  645,  646;  1  Bl.  Com.  429;  3  ib.  142;  Faw- 
cet  v.  Beavres,  2  Lev.  63 ;  Blake  v.  Lanyon,  6  T.  R.  221 ;  Reeve's  Dom. 
Rel.  291;  Sherwood  v.  Hall,  3  Sumner,  127,  Fed.  Cas.  No.  12,777; 
Ferguson  v.  Tucker,  2  Har.  &  Gill  (Md.)  182 ;  Conant  v.  Raymond,  2 
Aikens  (Vt.)  243 ;  Fores  v.  Wilson,  Peake's  Cas.  55. 

The  gist  of  an  action  like  that  now  before  us  is,  says  Lord  Mans- 
field, "that  the  defendant  has  enticed  away  a  man  who  stood  in  the 
relation  of  servant  to  the  plaintiff."  Hart  v.  Aldridge,  Cowp.  54,  56. 
And  the  enticing  must  be  proved.  3  Stark.  Ev.  1310;  Stuart  v.  Simp- 
son, 1  Wend.  (N.  Y.)  376.  Now  what  is  meant  by  "enticing  away 
from  the  service"  of  another?  So  far  as  we1  know,  the  word  "entice" 
has  no  technical  meaning.  But,  in  a  declaration  like  that  in  this  case, 
it  must  mean  something  quite  different  from  a  reluctant  employment 
of  another's  servant,  under  a  belief  that  the  master  has  consented  to 
that  employment.  The  word  is  often  joined,  in  the  precedents  of 
forms,  with  the  words  "solicit,  seduce,  persuade,  and  procure";  and 
it  evidently  imports  an  active  and  wrongful  effort  to  detach  a  servant 
from  his  master's  service,  by  offering  inducements  adapted  to  that 
end.  In  Keane  v.  Boycott,  2  H.  Bl.  511,  Eyre,  C.  J.,  describes  entice- 
CHAP.CAS.TORTS — 18 


274  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

merit  and  its  effect  as  a  dissolution  of  the  relation  of  master  and  serv- 
ant "officiously."  We  see  no  evidence  of  enticement,  in  the  present 
case.  The  son  had  wrongfully  left  his  father's  service,  before  he  was 
employed  by  the  defendants;  so  that  the  plaintiff's  declaration  is  not 
sustained  by  the  proof.  If  evidence  of  the  mere  employment  of  an- 
other's servant,  knowing  him  to  be  such,  would  support  a  declaration 
for  enticing  him  from  his  master,  there  would  be  no  necessity  for  a 
count  which  omits  the  allegation  of  enticement,  and  charges  only  a 
retaining,  employing,  or  harboring. 

Besides,  if,  in  the  opinion  of  the  jury,  the  defendants  believed  that 
the  plaintiff  had  fully  consented  to  their  employing  his  son,  then  the 
material  averment  in  the  declaration,  that  they  well  knew  that  he  was 
in  the  plaintiff's  service,  was  not  proved,  but  was  disproved.  For 
it  is  impossible  that  they  should  know  him  to  be  in  the  service  of  one 
whom  they  believed  to  have  dispensed  with  his  service.  New  trial 
ordered. 


LAWYER  v.  FRITCHER. 

(Court  of  Appeals  of  New  York,  Second  Division,  1891.    130  N.  Y.  239,  29  N.  E. 
267,  14  L.  K.  A.  700,  27  Am.  St.  Rep.  521.) 

Action  by  Peter  Lawyer  against  Peter  G.  Fritcher  to  recover  dam- 
ages for  loss  of  services  of  plaintiff's  daughter  abducted  by  defendant. 
A  judgment  entered  on  a  verdict  for  plaintiff  was  affirmed  at  general 
term,  and  defendant  appeals. 

The  other  facts  fully  appear  in  the  following  statement  by  POT- 
T£R,  J. : 

This  action  was  brought  by  plaintiff  against  defendant  to  recover 
damages,  as  alleged  in  the  complaint,  for  the  abduction  of  plaintiff's 
infant  daughter  from  the  service  of  the  plaintiff,  her  father,  and  also 
for  seduction  while  she  was  absent  from  her  father's  house.  It  ap- 
pears that  the  defendant,  who  is  a  man  60  years  of  age,  and  has  a  wife 
from  whom  he  is  not  legally  divorced,  and  who  is  living  absent  from 
him,  on  the  6th  of  May,  1886,  came  to  the  plaintiff's  house,  and  had 
an  interview  with  the  plaintiff  as  well  as  his  daughter.  On  the  16th 
day  of  May  following  he  again  came  to  the  plaintiff's  house,  and  had 
an  interview  with  him  and  plaintiff's  wife  upon  the  subject  of  marrying 
Edith,  plaintiff's  daughter.  During  the  interview  with  the  plaintiff 
upon  the  latter  day,  upon  the  subject  of  the  marriage  of  defendant  to 
plaintiff's  daughter,  there  was  a  conversation  between  them  in  regard 
to  his  legal  right  to  contract  marriage,  and  whether  the  conditions  of 
separation  from  defendant  and  his  wife  were  such  as  to  allow  of  a 
valid  marriage  between  defendant  and  plaintiff's  daughter.  The  de- 
fendant represented  that  he  had  a  legal  right  to  marry,  and  the  de- 
fendant drew  a  consent  or  contract  to  carry  out  such  design,  and"  in- 
duced the  plaintiff  and  his  wife  to  sign  it.  The  consent  or  contract  was 


INJURIES  TO  PARENT  275 

in  these  words :  "To  Home  it  may  Concern :  We  the  undersigned,  are 
the  father  and  mother  of  the  bearer,  Edith  Lawyer.  Whereas,  Edith 
and  P.  J.  Fritcher,  of  Sharon,  wish  to  be  united,  we  give  our  consent 
to  their  contracts.  Richmondville,  May  16,  1886.  Peter  Lawyer,  Cath- 
erine Lawyer."  After  these  representations  were  made,  and  this  in- 
strument signed,  the  defendant  carried  Edith  to  Portlandville,  in  Otse- 
go  county,  a  distance  of  about  30  miles  from  her  home  and  residence 
of  plaintiff ;  stayed  at  a  public  house  at  that  place,  and  said  to  the  lady 
who  kept  the  house  that  he  was  married ;  occupied  the  same  bed  with 
Edith  on  the  night  of  the  17th.  The  next  day  the  defendant  carried 
Edith  to  Sharon,  Schoharie  county,  where  the  defendant  resided,  and 
stated  to  his  housekeeper,  who  was  a  sister  of  Edith,  that  she  was  his 
wife.  On  the  night  of  the  18th  of  May  the  defendant  and  Edith  oc- 
cupied the  same  room  and  the  same  bed.  After  Edith  arrived  there, 
and  during  the  18th  and  19th  days  of  May,  there  was  a  conversation 
between  Edith  and  Julia,  her  sister,  defendant's  housekeeper,  in  which 
Julia  told  Edith  that  the  defendant  could  not  marry;  that  he  had  a 
wife  living,  and  was  not  divorced  from  her.  Thereafter  Edith  took 
poison  and  died  on  the  20th  day  of  May.  She  was  about  17  years 
of  age,  generally  lived  in  her  father's  family,  and  performed  service 
for  him,  though  she  did  work  out  occasionally,  but  her  father  had 
received  her  wages.  Edith  partook  of  that  poison,  and  died  of  it  on 
the  20th  day  of  May. 

The  principal  question  involved  in  this  case  is  whether  the  plaintiff 
proved  a  loss  of  service,  and  damage  in  consequence  thereof,  sufficient 
to  maintain  the  action.  The  trial  judge  charged  the  jury  that  the 
plaintiff  was  not  entitled  to  recover  damages  for  any  loss  of  service 
by  reason  of  the  taking  of  the  poison,  and  the  death  of  Edith  in  con- 
sequence. Nevertheless  the  jury,  under  the  charge  of  the  court,  found 
a  verdict  in  favor  of  the  plaintiff  of  $800,  besides  costs.  The  general 
term  was  not  unanimous  in  affirming  the  judgment  on  the  verdict  of 
the  jury. 

POTTER,  J.,  (after  stating  the  facts).6  I  should  not  feel  justified,  in 
departing  from  my  rule  in  this  court,  not  to  write  an  opinion  upon  the 
affirmance  of  a  judgment  in  a  common  and  ordinary  case,  except  to 
reconcile  differences  of  opinions  by  the  judges  of  the  court  below,  and 
to  remove  any  resort  to  strained  or  doubtful  reasoning  to  sustain  the 
judgment  appealed  from,  by  a  brief  presentation  of  a  feature  of  the 
case  that  was  not  distinctly  brought  out  in  that  court.  This  action  was 
brought  to  recover  damages  which  the  plaintiff  alleged  he  has  sus- 
tained by  the  unwarranted  interference  of  the  defendant  with  plain- 
tiff's right  to  service.  It  is  as  well  settled  that  he  who  unlawfully  in- 
terferes with  another's  right  to  service,  whether  it  be  the  service  of 
a  male  or  female,  a  minor  or  an  adult,  is  liable  for  actual  or  compensa- 
tory damages  in  the  same  manner,  and  upon  the  same  grounds,  that  he 

«  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


276  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

would  be  liable  for  an  unlawful  interference  with  any  other  property 
right  of  another!,  The  plaintiff  alleges  that  he  is  the  father  of  Edith 
Lawyer ;  that  at  the  time  of  the  acts  of  the  defendant  complained  of 
by  the  plaintiff  she  was  17  years  of  age,  and  was  residing  with  the 
plaintiff,  and  that  he  was  entitled  to  her  services ;  and  that  without  the 
consent  of  the  plaintiff  the  defendant,  on  or  about  the  16th  day  of  May, 
1886,  enticed  and  persuaded  the  said  Edith  Lawyer  to  leave  the  resi- 
dence and  service  of  the  plaintiff,  and  to  accompany  him  (the  defend- 
ant) to  Portlandville,  in  the  county  of  Otsego,  etc.  The  plaintiff  also 
alleges  that  on  the  17th  day  of  May,  1886,  the  defendant  debauched 
the  said  Edith,  etc.  The  evidence  in  this  case  establishes  beyond  ques- 
tion that  on  and  previous  to  the  16th  day  of  May,  1886,  Edith  was  the 
servant  of  plaintiff,  both  in  law  and  fact.  It  follows  from  that  re- 
lation that  plaintiff  was  entitled  to  command  and  to  have  her  services 
wholly  and  without  interruption,  save  such  time  as  was  necessary  for 
her  rest,  health,  and  preservation,  until  the  plaintiff  should  give  a  valid 
consent  to  dispense  with  the  service,  or  the  law  should  terminate  the 
relation.  The  defendant  came  to  plaintiff's  house,  where  she  was  in  fact 
performing,  and  was  in  law  bound  to  perform,  services  for  the  plaintiff, 
and  took  her  from  and  deprived  the  plaintiff  of  such  service.  If  this 
was  done,  as  plaintiff  alleges,  without  his  consent,  the  defendant  is 
liable  to  make  plaintiff  compensation  for  the  loss  of  service.  If  the 
plaintiff's  consent  was  obtained  by  defendant  through  fraud  it  was 
void,  for  fraud  vitiates  all  contracts  and  all  consents.  Consent  or  no 
consent  was  one  of  the  issues  to-be  tried  by  the  jury,  and  the  jury  has 
found,  upon  competent  evidence  for  that  purpose,  that  any  consent 
given  by  plaintiff  was  given  through  fraud,  and  so  was  no  consent. 
With  this  finding  by  the  jury  the  court  cannot  interfere.  Edith  was 
taken  away  from  the  plaintiff  by  the  defendant,  and  remained  with 
him  at  an  hotel,  and  on  the  way  to  defendant's  home,  and  at  his  home, 
for  the  space  of  four  days ;  and  the  plaintiff  was  in  the  mean  time  de- 
prived of  her  services,  and  his  right  to  them  was  unlawfully  inter- 
fered with. 

The  gravamen  of  the  action,  and  of  all  actions  of  this  nature,  is  the 
loss  of  service,  and  both  pleadings  and  the  proofs  in  this  case  make  out 
a  cause  of  action  in  entire  harmony  with  the  fullest  requirements  of 
such  actions,  and  entirely  dispenses  with  any  necessity  or  occasion  to 
resort  to  fiction,  as  is  said  to  be  done  in  some  instances  to  maintain 
the  recovery  of  damages  in  these  cases.  In  the  aspect  we  have  been 
considering  this  case,  it  presents  an  actual  and  measurable  pecuniary 
damage  to  the  plaintiff.  The  loss  of  service  constitutes  the  cause  of 
action,  and  it  can  make  no  difference,  as  to  the  right  of  action,  whether 
that  has  been  accomplished  by  an  unlawful  persuasion  of  the  servant 
to  leave  the  master's  employment,  or  through  fraud  upon  the  master, 
or  force  upon  the  servant,  or  by  both  such  fraud  and  force.  The  loss 
of  service  is  the  cause  of  action,  and  when  that  is  established  a  basis 
for  damages  to  some  extent  exists ;  and  whether  that  loss  is  caused  or 


INJURIES  TO  PARENT  277 

attended  by  or  followed  by  sexual  intercourse,  defilement,  or  pregnan- 
cy, loss  of  health  or  disability  to  serve,  or  for  the  purpose  or  with  an 
intention  of  obtaining  those  results  through  a  formal,  but  criminal, 
marriage,  has  relation  more  especially  to  the  damages  the  plaintiff  may 
recover  than  to  his  cause  of  action. 

It  is  true  the  complaint  charged  debauchment  and  ill  health  as  a 
consequence,  as  well  as  the  taking  of  the  servant  from  the  master. 
Whether  the  debauchment  was  proven  or  not,  the  taking  away  by  the 
defendant  was  proven  without  any  contradiction,  and  this  gave  plain- 
tiff a  cause  of  action  and  a  right  to  damages.  In  such  cases  the  jury 
have  the  right  to  impose  punitive  damages,  in  their  discretion,  in  ad- 
dition to  compensatory  damages.  I  think  these  views  are  abundantly 
supported  by  numerous  decided  cases,  to  a  few  of  which  I  make  ref- 
erence and  extracts.  Judge  Andrews,  in  People  v.  De  Leon,  109  N.  Y. 
229,  16  N.  E.  46,  4  Am.  St.  Rep.  444,  says :  "In  Regina  v.  Hopkins, 
Car.  &  M.  254,  the  case  of  an  indictment  for  the  abduction  of  an  un- 
married girl  under  sixteen  years  of  age,  'against  the  will'  of  her  father, 
it  appearing  that  the  consent  of  the  parents  was  induced  by  fraud,  the 
indictment  was  sustained ;  and  Gurney,  B.,  said  (in  that  case),  'I  men- 
tion these  cases  to  show  that  the  law  has  long  considered  fraud  and 
violence  to  be  the  same.'  " 

In  Lipe  v.  Eisenlerd,  32  N.  Y.  238  (which  was  an  action  by  the  father 
to  recover  damages  for  the  seduction  of  his  daughter,  who  was  29 
years  of  age,  but  living  in  her  father's  family),  this  language  is  used: 
"And  any  illegal  act  by  which  the  right  of  the  father,  such  as  it  was, 
to  her  services,  was  interfered  with,  to  his  detriment,  was  a  legal  wrong, 
for  which  the  law  affords  redi  ess."  On  page  236  of  the  same  case  the 
judge  uses  this  language :  "Finally,  it  is  urged  by  defendant's  counsel 
that  only  compensatory  damages  should  have  been  allowed.  The  judge 
refused  so  to  direct  the  jury,  and  I  think  he  was  right.  The  object  of 
the  action,  in  theory,  is  to  recover  compensation  for  the  loss  of  the 
services  of  the  person  seduced.  This  is  so  far  adhered  to  that  there 
must  be  a  loss  of  that  kind  or  the  action  will  fail ;  but  when  that  point 
is  established  the  rule  of  damages  is  a  departure  from  the  system  upon 
which  the  action  is  allowed.  The  loss  of  service  is  often  merely  nom- 
inal, though  the  damages  which  are  recovered  are  very  large.  It  is 
too  late  to  complain  of  this  as  a  departure  from  principle,  for  it  has 
been  the  law  of  this  state  and  of  the  English  courts  for  a  great  many 
years."  The  same  judge  further  on  in  the  opinion  uses  this  lan- 
guage :  "The  true  rule  [this  being  an  action  brought  by  plaintiff  for 
the  seduction  of  his  daughter],  I  think,  is  that  the  plaintiff's  right  to 
the  services  may  be  made  out  in  either  way,  and  that,  when  establish- 
ed so  that  the  action  is  technically  maintainable,  the  court  and  jury 
are  to  consider  whether  the  plaintiff,  on  the  record,  is  so  connected 
with  the  party  seduced  as  to  be  capable  of  receiving  injury  through  her 
dishonor.  A  mere  master,  having  no  capacity  to  be  injured  beyond 
the  pecuniary  worth  of  the  services  lost,  should  undoubtedly  be  limit- 


278  INTERFERENCE   WITH   DOMESTIC   RELATIONS 

ed  in  his  recovery  to  the  value  of  these  services.  But  the  case  of  this 
plaintiff,  as  has  been  mentioned,  is  quite  different."  In  Hewitt  v. 
Prime,  21  Wend.  79-82,  Judge  Nelson,  in  delivering  the  opinion  of  the 
court  in  an  action  like  the  one  under  consideration,  uses  this  language : 
"It  is  now  fully  settled,  both  in  England  and  here  [citing  several  au- 
thorities in  both  countries]  that  acts  of  service  by  the  daughter  are  not 
necessary.  It  is  enough  if  the  parent  has  a  right  to  command  them, 
to  sustain  the  action.  *  *  *  The  ground  of  the  action  has  often 
been  considered  technical,  and  the  loss  of  service  spoken  of  as  a  fiction, 
even  before  the  courts  ventured  to  place  the  action  upon  the  mere  right 
to  claim  the  services;  tEey  frequently  admitted  the  most  trifling  and 
valueless  acts  as  sufficient."  Further  on  in  the  opinion  the  judge  uses 
this  language:  "The  action,  then,  being  fully  sustained,  in  my  judg- 
ment, by  proof  of  the  act  of  seduction  in  the  particular  case,  all  the 
complicated  circumstances  that  followed  come  in  by  way  of  aggravating 
the  damages."  *  *  * 

The  judgment  should  be  affirmed,  with  costs.     All  concur,  except 
PARKER,  J.,  not  sitting. 


OBSTRUCTION  AND  PERVERSION   OF   LEGAL  REMEDIES  279 

OBSTRUCTION  AND  PERVERSION  OF  LEGAL  REMEDIES 

I.  Malicious  Prosecution 
1.  NATURE  OF  PREVIOUS  PROCEEDING  * 

LUBY  v.  BENNETT. 

(Supreme  Court  of  Wisconsin,  1901.     Ill  Wis.  613,  87  N.  W.  804,  56  L.  R.  A. 
261,  87  Am.  St.  Rep.  897.) 

Action  to  recover  damages.  The  complaint  stated  the  following  as 
a  cause  of  action :  Plaintiff  and  defendant,  from  March  27  to  Novem- 
ber 6,  1897,  were  copartners  in  the  shoe  business  in  Janesville,  Wis. 
Plaintiff  contributed  to  such  business  $4,400  in  money  and  gave  his 
personal  attention  thereto,  which  was  reasonably  worth  $100  per 
month.  The  sales  were  $17,000,  and  there  was  a  profit  of  33  per 
cent,  thereon,  one-half  of  which  justly  belonged  to  plaintiff.  On  the 
last  day  named  defendant  maliciously  and  without  probable  cause 
commenced  an  action  in  the  circuit  court  for  Rock  county,  Wis.,  charg- 
ing plaintiff,  among  other  things,  with  having  wrongfully  taken  from 
the  assets  of  the  firm,  in  goods  and  money,  $2,000  to  $2,500  and  ap- 
propriated the  same  to  his  own  use,  and  sold  goods  on  credit  witriout 
making  any  account  thereof,  intending  to  collect  therefor  and  convert 
the  proceeds  to  his  exclusive  benefit.  The  prayer  was  for  a  dissolution 
of  the  partnership  and  for  a  receiver.  Without  notice  to  this  plaintiff, 
defendant  procured  the  appointment  of  himself  as  receiver,  and  there- 
after, pursuant  thereto,  took  exclusive  control  of  the  firm  property  and 
business,  and  subsequently  sold  the  same  at  a  great  sacrifice,  secretly 
bidding  the  property  in  for  his  own  benefit,  whereby  plaintiff's  inter- 
est in  the  firm  assets  was  wholly  lost  to  him.  The  purpose  of  the 
action  brought  by  defendant  as  stated  was  to  accomplish  the  result 
before  stated.  By  reason  of  the  facts  plaintiff  was  injured  in  his  good 
name,  was  caused  much  mental  pain,  was  seriously  prejudiced  in  his 
efforts  to  obtain  profitable  employment,  and  caused  to  expend  upward 
of  $1,500  in  defending  himself  against  the  unjust  action.  Such  pro- 
ceedings were  finally  taken  in  such  action  that  it  was  finally  decided 
that  the  charges  against  plaintiff  were  false  and  malicious.  Upon  such 
facts  plaintiff  asked  judgment  in  the  sum  of  $10,000. 

Defendant  demurred  to  the  complaint  for  insufficiency,  and  the 
demurrer  was  overruled. 

MARSHALL,  J.2  (after  stating  the  facts).    A  right  of  action  for  dam- 

1  For  discussion  of  principles,  see  Chapin  on  Torts,  §  100. 

2  A  portion  of  the  opinion  is  omitted. 


280  OBSTRUCTION  AND  PERVERSION   OP  LEGAL  REMEDIES 

ages  for  malicious  prosecution  does  not  accrue  till  the  wrongful  pro- 
ceeding has  been  brought  to  final  determination  in  favor  of  the  defend- 
ant or  person  accused.  Pratt  v.  Page,  18  Wis.  337 ;  Winn  v.  Peckham. 
42  Wis.  493,  499;  Woodworth  v.  Mills,  61  Wis.  44,  20  N.  W.  728, 
50  Am.  Rep.  135 ;  Lawrence  v.  Cleary,  88  Wis.  473,  60  N.  W.  793 : 
Lowe  v.  Wartman,  47  N.  J.  Law,  413,  1  Atl.  489 ;  Com.  v.  McClusky, 
151  Mass.  488,  25  N.  E.  72.  Hence,  as  indicated  in  the  authorities 
cited,  in  an  action  to  recover  compensation  for  such  a  wrong,  such 
final  determination  must  be  distinctly  alleged  in  the  complaint  and 
proved  upon  the  trial,  the  same  as  any  other  fact  essential  to  the  cause 
of  action,  or  the  pleading  will  be  open  to  successful  challenge  for  in- 
sufficiency. Appellant  now  invokes  that  rule,  but  as  we  read  the 
complaint  it  seems  that  it  is  very  clearly  alleged  that  the  wrongful 
prosecution  was  ended  by  a  judgment  in  favor  of  the  defendant  there- 
in before  this  action  was  commenced.  The  meaning  of  the  language 
of  the  pleading,  "It  was  finally  decided  and  adjudged  in  said  action  on 
the  25th  day  of  September,  1900,  that  said  action  was  without  founda- 
tion, and  was  maliciously  and  unjustly  begun  and  that  this  plaintiff 
was  and  had  not  been  guilty  of  any  wrong,  and  awarded  this  plainitff 
judgment  therein  against  the  plaintiff  therein  (the  defendant  in  this 
action),"  leaves  no  room  for  reasonable  controversy  but  that  the  al- 
leged wrongful  prosecution  was  closed  by  a  judgment  in  favor  of 
respondent  prior  to  the  commencement  of  this  suit.  It  is  said  that 
the  receiver  appointed  had  not  made  his  report  when  this  action 
was  commenced,  and  that  it  indicates  that  the  alleged  wrongful  pros- 
ecution was  not  ended.  The  rule  invoked  does  not  require  that  all 
proceedings  that  may  be  had  or  are  required  in  an  action  to  finally 
work  out  or  enforce  the  rights  of  the  parties  shall  occur  before  a 
cause  of  action  will  accrue  to  the  defendant  therein  to  prosecute  the 
plaintiff  for  maliciously  commencing  and  carrying  on  such  action.  It 
requires  only  that  the  issues  material  to  the  question  of  the  bona  fides 
of  such  action  shall  be  tried  and  closed  by  final  judgment.  That  was 
done  in  the  case  in  question,  notwithstanding  the  provisional  remedy 
or  ancillary  proceeding  therein,  to  control,  administer  and  preserve  the 
property  involved,  to  await  the  final  determination  of  the  rights  of  the 
parties,  was  not  fully  closed  up.- 

It  is  suggested  that  the  action  cannot  be  said  to  have  been  finally 
closed  when  this  action  was  commenced  because  the  right  of  appeal 
from  the  judgment  to  this  court  existed.  There  is  authority  to  the 
effect  that  a  judgment  in  favor  of  the  defendant  in  the  alleged  wrong- 
ful action,  appealed  from  to  a  higher  court,  does  not  satisfy  the  element 
of  want  of  probable  cause,  and  is  insufficient  to  sustain  a  suit  for 
malicious  prosecution  of  such  action.  Reynolds  v.  De  Geer,  13  111. 
App.  113;  Nebenzahl  v.  Townsend,  61  How.  Prac.  (N.  Y.)  353.  In 
the  first  of  such  cases  the  decision  went  upon  the  ground  that  the 
alleged  wrongful  prosecution  was  in  a  justice  court  and  that  the  appeal 


MALICIOUS  PROSECUTION  281 

from  the  judgment  opened  up  the  whole  matter,  giving  the  plaintiff 
therein  a  right  to  a  trial  de  novo;  and  in  neither  case  was  the  ques- 
tion under  discussion  raised  by  an  objection  to  the  sufficiency  of  the 
complaint,  but  the  status  of  the  alleged  wrongful  prosecution  was 
treated  as  matter  of  defense.  Nebenzahl  v.  Townsend  is  supported  by 
numerous  citations  from  English  authorities  to  the  effect  that  the  plea 
of  a  pending  appeal  from  the  judgment  in  the  first  action  is  a  good 
defense.  In  Ingram  v.  Root,  51  Hun,  238,  3  N.  Y.  Supp.  858,  it  is  said 
that  it  is  essential  to  allege  in  the  complaint  that  the  judgment  in 
plaintiff's  favor  in  the  first  action  has  not  been  appealed  from,  or  that 
it  has  been  appealed  from  and  affirmed.  No  authority  is  cited  to  sup- 
port that  view,  and  none  which  we  may  safely  follow  exists.  The 
decision  is  out  of  harmony  with  all  others  in  the  New  York  courts, 
and  contrary  to  the  settled  law  as  declared  by  its  highest  court,  as  is 
clearly  evidenced  by  Marks  v.  Townsend,  97  N.  Y.  590,  where  it 
was  held  that  a  final  judgment,  in  an  action  alleged  to  have  been 
maliciously  brought,  satisfies  the  essential  element  of  a  final  determina- 
tion of  the  wrongful  prosecution  in  an  action  to  recover  damages  for 
such  a  wrong,  notwithstanding  the  right  of  appeal  therefrom  ex- 
ists ;  and  that,  if  an  appeal  has  been  taken  from  the  judgment  and  is 
actually  pending,  the  judgment,  till  set  aside  or  reversed,  will  stand 
for  want  of  probable  cause  as  much  as  any  judgment  can;  that  a 
pending  appeal  is  effectual  only  to  sustain  an  application  for  an  order 
staying  proceedings  till  the  appeal  shall  have  been  determined.  It  is 
not  necessary  here  to  go  that  far.  It  is  sufficient  to  hold  that,  on  the 
question  of  the  status  of  the  alleged  wrongful  prosecution,  it  is  suffi- 
cient to  allege,  in  the  action  for  damages  on  account  of  it,  that  judg- 
ment was  rendered  in  favor  of  the  defendant  therein ;  and  that  if  the 
defendant  in  the  action  for  damages  desires  to  defeat  the  plaintiff  on 
that  question,  he  must  lay  the  foundation  therefor  by  answer  instead 
of  by  relying  on  an  objection  to  the  complaint  by  a  demurrer  for  in- 
sufficiency (Carter  v.  Paige,  80  Cal.  390,  22  Pac.  188) ;  that,  while  the 
pendency  of  an  appeal  may  constitute  a  defense,  in  the  absence  of 
anything  to  show  that  there  is  a  pending  appeal  from  the  judgment, 
the  presumptions  are  in  favor  of  the  validity  and  justice  thereof ;  that 
no  allegation  on  that  subject  is  necessary  on  the  part  of  the  person 
relying  thereon;  and  that  the  mere  right  of  appeal  from  a  judgment 
in  an  alleged  malicious  prosecution  does  not  affect  the  right  of  the  de- 
fendant therein,  if  he  is  the  prevailing  party,  to  pursue  his  prosecutor 
in  an  action  for  damages. 

The  further  claim  is  made  that  the  complaint  is  insufficient  because 
it  shows  that  in  the  alleged  wrongful  prosecution  the  defendant  was 
brought  into  court  by  the  mere  service  of  a  summons,  neither  his  per- 
sonal liberty  nor  his  property  being  interfered  with.  If  the  nature  of 
the  suit  were  such  as  appellant's  counsel  claim,  there  would  be  much 
authority  to  sustain  their  position.  The  rule  in  England,  when  this 


282  OBSTRUCTION   AND   PERVERSION   OF   LEGAL   REMEDIES 

country  was  within  its  jurisdiction,  was  and  still  is,  that  since  costs 
are  allowed  to  the  successful  defendant  in  a  civil  suit,  they  are  pre- 
sumed to  compensate  him  for  all  damages  suffered,  if  neither  his  per- 
son nor  property  is  interfered  with,  regardless  of  whether  the  prosecu- 
tion is  maliciously  wrongful  or  not.  Ordinarily  we  would  say  that 
such  rule  should  be  regarded  as  part  of  the  common  law  and  binding 
upon  courts  here  till  changed  by  statute,  the  same  as  any  other  com- 
mon-law principle.  But  it  does  not  seem  to  have  been  so  regarded  to 
any  great  degree.  Courts  have  treated  the  subject  of  whether  the 
right  to  compensation  for  malicious  prosecution  of  a  mere  civil  case, 
without  interference  with  person  or  property,  exists,  as  matter  of 
judicial  policy,  to  be  determined  according  to  varying  opinions  of 
judges  of  supreme  judicial  tribunals;  though  the  decisions  in  regard 
thereto,  found  in  the  books,  are  not  based  on  that  ground  to  any  great 
degree,  but  on  what  was  supposed  to  be  the  weight  of  authority.  The 
result  is  that  on  an  important  branch  of  the  law,  that  has  been  settled 
in  England  since  costs  were  allowed  to  the  successful  defendant  by 
the  statute  of  Marlbridge  (52  Hen.  III. ;  1267)  the  courts  of  the  states 
of  this  Union,  and  the  text-writers  as  well,  are  in  as  much  confusion 
as  in  respect  to  any  other  branch  of  the  law  that  could  be  suggested. 
What  we  say  as  to  the  law  of  England  is  supported  by  the  following 
quotation  from  the  opinion  of  Lord  Bowen  in  Mining  Co.  v.  Eyre, 
L.  R.  11  Q.  B.  Div.  674,  690:  "The  broad  canon  is  true  that  in  the 
present  day,  and  according  to  our  present  law,  the  bringing  of  an 
ordinary  action,  however  maliciously,  and  however  great  the  want  of 
reasonable  and  probable  cause,  will  not  support  a  subsequent  action  for 
malicious  prosecution.  *  *  *  The  counsel  for  the  plaintiff  com- 
pany have  argued  this  case  with  great  ability;  but  they  cannot  point 
to  a  single  instance  since  Westminster  Hall  began  to  be  the  seat  of 
justice  in  which  an  ordinary  action,  similar  to  the  actions  of  the  pres- 
ent day,  has  been  considered  to  justify  a  subsequent  action  on  the 
ground  that  it  was  brought  maliciously  and  without  reasonable  and 
probable  cause."  To  support  what  we  have  said  as  to  the  confusion 
of  authority  in  this  country,  we  refer  to  the  following :  In  3  Lawson, 
Rights,  Rem.  &  Prac.  §  1082,  we  are  informed  that  "most  of  the  earlier 
cases  in  the  United  States,  and  a  few  of  the  recent  ones,  follow  the 
English  rule ;  but  others,  and  it  would  seem  on  better  grounds,  sustain 
the  action,"  where-  neither  person  nor  property  is  interfered  with  in 
the  alleged  wrongful  action.  The  note  to  the  text  indicates  that  the 
authorities  in  favor  of  the  English  rule  are  much  more  numerous  and 
are  as  recent  as  those  to  the  contrary,  and  that  the  latter  are  based 
almost  wholly  on  Pangburn  v.  Bull,  1  Wend.  (N.  Y.)  345;  Whipple 
v.  Fuller,  11  Conn.  582,  29  Am.  Dec.  330;  and  Closson  v.  Staples, 
42  Vt.  209,  1  Am.  Rep.  316.  An  examination  of  those  cases  indicates 
that  the  rule,  at  its  inception  in  this  country,  was  founded  in  error. 
The  first  invasion  of  the  common-law  rule  seems  to  have  been  made 


MALICIOUS   PROSECUTION  283 

in  Pangburn  v.  Bull  in  1828;  the  next  in  Whipple  v.  Fuller,  1836. 
In  the  first  case  it  seems  that  the  change  in  the  ancient  English  rule, 
founded  on  the  statute  of  Marlbridge,  was  overlooked.  All  the  sup- 
porting American  authorities  cited  by  the  court  were  cases  of  arrest 
and  bail.  In  the  Connecticut  case  the  change  in  the  English  rule  was 
recognized,  but  the  court  declined  to  follow  it,  preferring,  for  reasons 
stated,  to  follow  the  doctrine  established  prior  to  the  statutory  right 
of  successful  defendants  to  costs.  The  Vermont  court  followed  Con- 
necticut and  adopted  its  reasoning.  The  cases  referred  to  were  fol- 
lowed in  Eastin  v.  Bank,  66  Cal.  123,  4  Pac.  1106,  56  Am.  Rep.  77, 
though  it  was  said  that  the  weight  of  authority,  American  as  well  as 
English,  and  the  text-writers,  is  the  other  way.  In  Kolka  v.  Jones, 
6  N.  D.  461,  71  N.  W.  558,  66  Am.  St.  Rep.  615,  it  seemed,  to  the 
court  that  the  weight  of  American  authority  was  against  the  English 
rule.  In  14  Am.  &  Eng.  Enc.  Law,  p.  34,  it  is  said  the  authorities  on 
the  question  are  evenly  balanced.  *  *  * 

So  careful  a  writer  as  Judge  Cooley  does  not  venture  to  say  definite- 
ly which  way  the  weight  of  authority  preponderates  in  this  country, 
though  his  language  leads  one  to  believe  that,  in  his  judgment,  it  is 
in  favor  of  the  English  rule.  He  confines  the  civil  actions  that  may 
support  one  for  damages  for  malicious  prosecution  by  the  settled  law, 
to  maliciously  instituting  and  prosecuting  proceedings  in  bankruptcy, 
suits  in  which  the  defendant  is  arrested,  suits  in  whch  the  property  of 
the  defendant  is  attached,  and  proceedings  to  have  a  party  declared 
insane  and  placed  under  guardianship.  He  says,  as  to  other  civil 
actions :  "In  some  cases  it  has  been  held  that  an  action  may  be  main- 
tained for  the  malicious  institution  without  probable  cause,  of  any 
civil  suit  which  has  terminated  in  favor  of  the  defendant;  but  the 
English  authorities  do  not  justify  this  statement,  and  there  is  much 
good  reason  in  what  has  been  said  in  a  Pennsylvania  case  (Mayer  v. 
Walter,  64  Pa.  283),  that  'if  the  person  be  not  arrested  or  his  property 
seized,  it  is  unimportant  how  futile  and  unfounded  the  action  might 
be ;  as  the  plaintiff,  in  consideration  of  law,  is  punished  by  the  pay- 
ment of  costs.'  If  every  suit  may  be  retried  on  an  allegation  of  mal- 
ice, the  evils  would  be  intolerable,  and  the  malice  in  each  subsequent 
suit  would  be  likely  to  be  greater  than  in  the  first."  Cooley,  Torts 
(2d  Ed.)  p.  219.  The  first  significant  case  found  in  the  American 
decisions  is  Ray  v.  Law,  Pet.  C.  C.  207,  Fed.  Cas.  No.  11,592,  decided 
in  1816,  where  the  English  rule  was  followed  to  the  letter,  it  being 
said  that,  "If  bail  be  not  demanded,  it  is  unimportant  how  futile  and 
unfounded  the  action  may  be,  as  the  plaintiff  is  punished  by  the  pay- 
ment of  costs  and  the  defendant  is  not  materially  injured."  The  fol- 
lowing authorities,  in  addition  to  those  already  referred  to,  support 
Judge  Cooley's  observation:  McNamee  v.  Minke,  49  Md.  122;  Su- 
preme Lodge  v.  Unverzagt,  76  Md.  104,  24  Atl.  323 ;  Bitz  v.  Meyer, 
40  N.  J.  Law,  252,  29  Am.  Rep.  233 ;  Potts  v.  Imlay,  4  N.  J.  Law, 


284  OBSTRUCTION  AND  PERVERSION   OF  LEGAL  REMEDIES 

330,  7  Am.  Dec.  603 ;  Woodmansie  v.  Logan,  2  N.  J.  Law,  93  ;  Mitchell 
v.  Railroad  Co.,  75  Ga.  398;  Kramer  v.  Stock,  10  Watts  (Pa.)  115; 
Gorton  v.  Brown,  27  111.  489,  81  Am.  Dec.  245;  Ely  v.  Davis,  111 
N.  C.  24,  15  S.  E.  878 ;  Cade  v.  Yoctim,  8  La.  Ann.  477 ;  Thomas  v. 
Rouse,  2  Brev.  (S.  C.)  75.  The  doctrine  of  those  cases  and  the  mischief 
it  is  aimed  at  are  well  indicated  by  the  following  language  from  the 
opinion  in  Ely  v.  Davis,  supra:  "We  may  as  well  say  that  the  law 
seems  to  be  settled  by  the  weight  of  authority,  although  there  are  some 
decisions  to  the  contrary,  that  an  action  will  not  lie  for  malicious 
prosecution  in  a  civil  suit,  unless  there  was  an  arrest  of  the  person 
or  seizure  of  property,  as  in  attachment  proceedings  at  law  or  their 
equivalent  in  equity,  or  in  the  proceedings  in  bankruptcy,  or  like 
cases,  jvhere  there  was  some  special  damage  resulting  from  the  action, 
and  which  would  not  necessarily  result  in  all  cases  of  the  like  kind." 
"The  policy  of  the  law,  while  encouraging  arbitrations  and  settlements 
without  suit,  has  ever  been  to  afford  fair  opportunity  to  all  to  have 
their  claims  determined  in  the  courts.  To  hold  it  now  to  be  that  in 
every  case  of  failure  by  the  plaintiff  to  establish  his  allegation  of  fraud, 
there  being  no  special  damage  resulting  therefrom,  upon  a  suggestion 
of  malice  and  want  of  probable  cause,  an  action  for  malicious  prosecu- 
tion would  lie  against  him,  would  open  the  floodgate  to  a  species  of 
litigation  hitherto  unknown  in  North  Carolina,  the  absence  of  which, 
up  to  the  present  time,  indicates  that  it  has  not  heretofore  been  recog- 
nized." The  Iowa  court,  in  Wetmore  v.  Mellinger,  supra  [64  Iowa, 
741,  18  N.  W.  870,  52  Am.  Rep.  465],  mentioned,  as  considerations 
for  the  doctrine  that  the  malicious  prosecution  of  a  mere  civil  suit, 
without  interference  with  the  person  or  property  of  the  defendant, 
will  not  sustain  an  action  for  damages,  the  following :  "The  courts  are 
open  and  free  to  all  who  have  grievances  and  seek  remedies  therefor, 
and  there  should  be  no  restraint  upon  a  suitor,  through  fear  of  liabil- 
ity resulting  from  his  action,  which  would  keep  him  from  the  courts. 
*  *  *  If  an  action  may  be  maintained  against  a  plaintiff  for  the 
malicious  prosecution  of  a  suit  without  probable  cause,  why  should 
not  a  right  of  action  accrue  against  a  defendant  who  defends  with- 
out probable  cause  and  with  malice  ?" 

From  what  has  been  said  it  will  be  seen  that  the  proposition  sub- 
mitted and  contended  for  by  appellant's  counsel  ought  not  to  receive 
approval  as  the  law  of  this  state  without  the  most  careful  consideration 
of  the  subject  in  a  case  necessarily  depending  upon  a  correct  solution 
of  it.  As  at  present  advised,  we  are  not  prepared  to  say  that  such  a 
case  has  been  heretofore  decided  by  this  court.  Noonan  v.  Orton,  30 
Wis.  356,  was  not  such  a  case.  There  the  plaintiff's  property  was 
seriously  interfered  with  by  successive,  unnecessary  and  vexatious  eq- 
uitable levies  thereon  in  garnishee  proceedings,  and  the  ground  of  the 
action  was  abuse  of  the  process  of  the  court.  In  our  judgment  the 
present  case  does  not  necessarily  turn  on  the  broad  proposition  con- 


MALICIOUS  PROSECUTION  285 

tended  for.  The  alleged  wrongful  action  was  not  an  ordinary  suit, 
where  neither  person  nor  property  was  interfered  with,  and  where 
there  was  no  danger  other  than  such  as  generally  results  from  ordinary 
civil  actions  in  such  circumstances.  The  action  was  brought  ostensibly 
for  the  purpose  of  winding  up  a  partnership.  Before  it  was  com- 
menced, respondent  was  in  possession  of  the  partnership  property  as 
much  as  appellant.  The  purpose  of  the  action  was  to  as  effectually  de- 
prive him  of  that  possession  and  subject  it,  in  invitum,  to  the  claim  of 
appellant,  as  if  it  were  levied  upon  by  writ  of  attachment.  Under 
such  circumstances  damages  other  than  taxable  costs  necessarily  fol- 
low. Moreover,  special  damages  are  expressly  alleged  in  the  com- 
plaint. The  pleader  says,  in  effect,  that  the  purpose  of  the  plaintiff 
was,  by  means  of  the  winding-up  proceedings,  to  obtain  possession  of 
the  partnership  property,  in  form  as  an  officer  of  the  court  for  the  ben- 
efit of  the  person  legally  entitled  thereto,  but  in  fact  for  the  benefit  of 
the  plaintiff ;  and,  through  the  forms  of  law,  to  administer  the  property 
ostensibly  for  the  legitimate  purpose  of  a  winding-up  suit,  but  in  fact 
to  enable  the  plaintiff  to  control  the  property,  and,  in  an  indirect  way, 
to  obtain  the  full  title  thereto;  and  that  such  purpose  was  fully  con- 
summated, whereby  respondent's  interest  in  the  firm  assets  was  wholly 
lost  to  him.  The  same  reasoning  that  supports  an  action  for  damages 
for  maliciously  and  without  probable  cause  instituting  and  prosecuting 
proceedings  to  have  a  person  declared  a  bankrupt  applies  to  an  action 
maliciously  brought  to  wind  up  a  partnership,  founded  on  alleged  mis- 
conduct of  the  defendant.  In  quite  a  recent  English  case  to  which  we 
have  already  referred  (Mining  Co.  v.  Eyre)  wherein  the  rule  that  an 
ordinary  civil  action,  neither  the  property  nor  person  of  the  defend- 
ant being  interfered  with,  causing  special  damage,  though  maliciously 
brought  and  prosecuted,  will  not  sustain  an  action  for  damages,  was 
maintained  with  as  much  clearness  and  firmness  as  in  any  previous 
case,  it  was  held  that  an  action  maliciously  brought  and  prosecuted 
to  wind  up  a  partnership  should  not  be  classed  with  those  where  the 
damages  to  the  defendant  are  deemed  to  be  damnum  absque  injuria; 
but  under  the  third  head  of  actionable  wrongs  growing  out  of  malicious 
prosecutions,  laid  down  by  Holt,  C.  J.,  in  Savill  v.  Roberts,  1  Ld. 
Raym.  374,  378,  namely,  actions  where  a  man's  fair  fame  and  credit 
are  injured,  it  was  said  that  such  an  action  is  not  like  an  ordinary 
action  for  fraud,  where  the  wrong  done  by  merely  bringing  the  action 
is  supposed  to  be  remedied  by  the  vindication  of  the  defendant  at  the 
trial ;  but  its  effect  is  like  that  in  wrongful  proceedings  in  bankruptcy 
— the  good  name,  fame  and  credit  of  the  person  accused  is  necessarily 
seriously  injured.  That  seems  plain,  and  it  is  equally  plain  that  such 
actions  fall  within  the  class  held  to  constitute  a  good  foundation  for 
an  action  for  damages  for  malicious  prosecution  on  account  of  the 
interference  with  property  rights.  Any  particular  method  of  inter- 
fering with  property  rights,  as  by  writ  of  attachment,  is  not  material. 


286  OBSTRUCTION  AND  PERVERSION  OF  LEGAL  REMEDIES 

An  equitable  levy  upon  property,  as  in  garnishee  proceedings,  or  the 
deprivation  of  the  defendant  of  his  property  by  means  of  the  appoint- 
ment of  a  receiver,  or  any  other  means  whereby  his  property  is  taken 
into  the  custody  of  the  court  or  taken  out  of  the  custody  of  the  owner 
and  out  of  his  free  control,  as  in  Noonan  v.  Orton,  supra,  which,  in 
the  ordinary  course  of  things,  causes  damage  not  reached  by  a  mere 
judgment  of  vindication  or  for  costs,  is  sufficient.  This  action  was  not 
commenced  by  service  of  a  summons  and  prosecuted  without  the  per- 
son or  property  of  the  defendant  being  interfered  with  directly  to  his 
damage;  but,  as  before  indicated,  the  defendant  was  deprived  of  the 
possession  of  his  property,  and  a  growing  business,  of  which  he  was 
part  owner,  was  abruptly  stopped  and  closed  out,  necessarily  causing 
loss  to  him,  not  only  by  depreciation  in  the  value  of  the  firm  assets, 
but  by  destruction  of  the  business  in  which  the  property  was  used,  and 
by  injuring  respondent's  good  name  and  fair  fame  as  a  merchant 
and  member  of  the  community. 

The  further  point  is  made  that  the  complaint  is  insufficient  because 
it  does  not  contain  an  allegation  that  the  plaintiff  was  damaged  by  the 
wrongs  complained  of  to  some  specific  amount.  That  must  be  ruled 
against  appellant  on  the  well-settled  principle  that,  where  damages  are 
necessarily  inferable  from  the  facts  alleged,  a  statement  of  such  facts 
sufficiently  states  the  damages.  Luessen  v.  Power  Co.,  109  Wis.  94, 
85  N.  W.  124;  4  Enc.  PI.  &  Prac.  p.  618. 

The  order  appealed  from  is  affirmed. 


2.  COMMENCEMENT  OF  PREVIOUS  PROCEEDING* 


HALBERSTADT  v.  NEW  YORK  LIFE  INS.  CO. 

(Court  of  Appeals  of  New  York,  1909.     194  N.  Y.  1,  86  N.  E.  801,  21  L.  R.  A. 
[N.  S.]  293,  16  Ann.  Gas.  1102.) 

Appeal  by  permission  from  an  order  of  the  Appellate  Division  of 
the  Supreme  Court,  in  the  first  judicial  department  entered  May  8, 
1908,  which  reversed  an  interlocutory  judgment  of  Special  Term 
sustaining  a  demurrer  to  the  second  and  third  defenses  of  the  answer 
and  overruled  such  demurrer. 

The  questions  certified  are : 

First.  Whether  the  matter  set  up  as  a  second,  further  and  separate 
defense  in  the  paragraphs  numbered  III  and  IV  in  the  answer  is 
insufficient  in  law  upon  the  face  thereof  to  constitute  a  defense  to  the 
complaint. 

Second.  Whether  the  matter  set  up  as  a  third,  further  and  separate 

»  For  discussion  of  principles,  see  Chapin  on  Torts,  §  100. 


MALICIOUS  PROSECUTION  287 

defense  in  the  paragraphs  numbered  III,  IV,  and  V  in  said  answer  is 
insufficient  in  law  upon  the  face  thereof  to  constitute  a  defense  to  the 
complaint. 

The  action  is  brought  to  recover  damages  for  an  alleged  malicious 
prosecution  claimed  to  have  been  instituted  by  the  respondent  against 
the  appellant  in  Mexico.  It  is  in  the  complaint,  amongst  other  things, 
alleged  that  the  respondent  through  its  agent  in  the  Criminal  Court 
of  the  City  of  Mexico  charged  the  appellant  with  the  crime  of  em- 
bezzlement, "and  thereupon  and  in  and  by  virtue  of  said  charge  and 
the  institution  of  said  criminal  proceedings  a  warrant  was  issued  by 
said  court  for  the  arrest  of  the  plaintiff  (in  this  action),"  and  that 
thereafter  "the  said  criminal  proceedings  for  the  punishment  of  said 
plaintiff  were  dismissed  and  extinguished  and  the  said  prosecution  was 
thereby  wholly  determined  *  *  *  in  favor  of  the  plaintiff." 

The  respondent  by  its  second  defense,  which  is  challenged  here  for 
insufficiency,  alleged  in  substance  that,  before  the  warrant  referred 
to  in  the  complaint  could  be  served  upon  the  appellant  and  before  he 
could  be  apprehended,  "he  left  the  republic  of  Mexico,  and  thereafter 
continuously  remained  absent,  *  *  *  and  by  such  absence  avoid- 
ed being  arrested  under  such  warrant,  or  being  tried,  *  *  *  but 
remained  absent  from  said  republic  of  Mexico  for  a  sufficient  period 
of  time  to  enable  him  to  procure  the  dismissal  of  said  proceedings 
under  the  law  of  Mexico  on  account  solely  of  the  lapse  of  time,"  and, 
conversely,  that  said  criminal  proceedings  "were  not  dismissed  on  ac- 
count of  a  determination  of  the  case  in  favor  of  the  plaintiff  on  the 
trial  thereof  on  the  merits,  nor  was  it  dismissed  for  failure  to  pros- 
ecute said  case  except  as  above  set  forth,  nor  was  it  dismissed  on  ac- 
count of  any  withdrawal  of  the  complaint." 

The  third  defense,  also  challenged,  repeats  the  foregoing  allegations 
and  alleges  that  "the  departure  of  the  plaintiff  *  *  *  was  for 
the  purpose  of  avoiding  arrest,  and  by  so  absconding  the  said  plaintiff 
did  avoid  arrest,"  and  in  substance  that  he  did  so  for  the  purpose  and 
with  the  result  of  procuring  a  dismissal  of  the  criminal  proceeding  in 
accordance  with  the  laws  of  Mexico  on  account  of  the  lapse  of  time 
alone,  and  "by  reason  of  the  premises  said  plaintiff  could  not  be 
brought  to  trial  and  was  never  tried  in  said  court  to  answer  to  said 
charge." 

HISCOCK,  J.4  This  appeal  involves  interesting  questions  in  an  ac- 
tion for  malicious  prosecution  raised  by  demurrer  to  certain  affirmative 
defenses  which  have  been  pleaded. 

The  respondent's  first  reply  to  the  appellant's  attack  upon  its  an- 
swer is  of  the  tu  quoque  nature,  it  insisting  that  the  complaint  is  as 
deficient  in  the  statement  of  a  good  cause  of  action  as  the  answer  is 
alleged  to  be  in  the  statement  of  a  good  defense.  This  contention  is 
based  upon  the  fact  that  the  complaint  does  not  allege  any  act  sub- 

*  Portions  of  the  opinion  of  Hiscock,  J.,  are  omitted. 


288  OBSTRUCTION  AND  PERVERSION   OP   LEGAL  REMEDIES 

sequent  or  in  addition  to  the  mere  issuance  of  a  warrant  in  the  criminal 
proceeding  complained  of ;  does  not  allege  that  the  warrant  was  ever 
executed  in  any  way  whatever,  or  that  the  appellant  was  ever  actually 
brought  into  said  proceedings  either  by  force  of  process  or  voluntary 
appearance.  Therefore  the  question  is  presented  whether  the  mere 
application  for  and  issuance  to  a  proper  officer  for  execution  of  a  war- 
rant on  a  criminal  charge  may  institute  and  constitute  such  a  prosecu- 
tion as  may  be  made  the  basis  of  a  subsequent  civil  action  by  the  party 
claimed  to  have  been  injured.  In  considering  this  question  we  must 
keep  in  mind  that  the  facts  alleged  in  the  complaint,  and  in  the  light 
of  which  it  is  to  be  determined,  do  not  show,  as  the  answer  does,  that 
the  defendant  in  those  proceedings  was  beyond  the  jurisdiction  of  the 
court. 

This  question  does  not  seem  to  have  been  settled  by  any  decision 
which  we  regard  as  controlling  on  us. 

The  respondent  cites  the  following  authorities  deciding  it  in  the  nega- 
tive: Newfield  v.  Copperman  (Sp.  Term)  15  Abb.  Prac.  (N.  S.)  360; 
Lawyer  v.  Loomis,  3  Thomp.  &  C.  393 ;  Cooper  v.  Armour  (C.  C.)  42 
Fed.  215,  8  L.  R.  A.  47;  Heyward  v.  Cuthbert,  4  McCord  (S.  C.)  354; 
O'Driscoll  v.  McBurney,  2  Nott  &  McC.  (S.  C.)  54;  Bartlett  v.  Christ- 
hilf,  69  Md.  219,  14  Atl.  518;  Gregory  v.  Derby,  8  C.  &  P.  749;  Paul 
v.  Fargo,  84  App.  Div.  9,  82  N.  Y.  Supp.  369. 

The  case  last  cited  was  concerned  with  an  alleged  malicious  prosecu- 
tion by  means  of  civil  process,  and  what  was  there  said  must  be  in- 
terpreted with  reference  to  that  fact,  and  thus  interpreted  it  is  not  ap- 
plicable here.  Of  the  other  cases,  only  two,  Heyward  v.  Cuthbert  and 
Cooper  v.  Armour,  considered  the  question  here  involved  with  suffi- 
cient thoroughness  to  require  brief  comment.  An  examination  will 
show  that  the  decision  in  each  of  them  rested  in  whole  or  part  on  a 
principle  not,  as  I  believe,  adopted  in  this  state.  In  the  former  it  was 
said  that,  "The  foundation  of  this  sort  of  action  is  the  wrong  done  to 
the  plaintiff  by  the  direct  detention  or  imprisonment  of  his  person."  As 
I  think  we  shall  see  hereafter,  that  is  not  a  correct  statement  of  the 
law  in  this  state.  In  the  other  case  it  was  stated,  "The  only  injury 
sustained  by  the  person  accused,  when  he  is  not  taken  into  custody, 
and  no  process  has  been  issued  against  him,  is  to  his  reputation;  and 
for  such  an  injury  the  action  of  libel  or  slander  is  the  appropriate 
remedy,  and  would  seem  to  be  the  only  remedy."  I  think  that  this  doc- 
trine, which  if  correct  would  provide  an  adequate  remedy  outside  of 
an  action  for  malicious  prosecution  for  an  injured  party  in  a  case 
where  no  warrant  had  been  executed,  also  is  opposed  to  the  weight  of 
authority  both  in  this  state  and  elsewhere  hereafter  to  be  referred  to. 

The  authorities  holding  to  the  contrary  on  the  question  above  stated, 
and  that  the  execution  of  the  warrant  is  not  necessary  to  lay  the 
foundation  for  an  action  of  malicious  prosecution,  are  Addison  on 
Torts,  vol.  2  (4th  Eng.  Ed.)  p.  478 ;  Newell  on  Malicious  Prosecution, 
§  30;  Stephens  on  Malicious  Prosecution  (Am.  Ed.)  §  8;  Stapp  v. 


MALICIOUS   PfiOSECUTION  289 

Partlow,  Dud.  (Ga.)  176;  Clarke  v.  Postan,  6  C.  &  P.  423;  Feazle  v. 
Simpson,  1  Scam.  (2  111.)  30;  Britton  v.  Granger,  13  Ohio  Cir.  Ct. 
R.  281,  291;  Holmes  v.  Johnson,  44  N.  C.  44;  Coffey  v.  Myers,  84 
Ind.  105.  And  to  the  like  effect  in  the  absence  of  special  statutory 
provisions  is  Swift  v.  Witchard,  103  Ga.  193,  29  S.  E.  762. 

Thus  it  is  apparent,  as  before  stated,  that  there  is  no  controlling 
decision  on  this  question  and  we  are  remitted  to  a  search  for  some 
general  considerations  which  may  be  decisive.  It  seems  to  me  that 
these  may  be  found  and  that  they  favor  the  view  that  a  prosecution 
may  be  regarded  as  having  been  instituted  even  though  a  warrant  has 
not  been  executed. 

The  first  one  of  these  considerations  is  found  in  the  rule  applied  in 
civil  actions  and  proceedings  to  an  analagous  situation.  There  it 
has  many  times  been  held  that  the  mere  issue  of  various  forms  of  civil 
process  for  service  or  other  execution  is  sufficient  independent  of  stat- 
ute to  effect  the  commencement  of  a  case  or  proceeding.  Carpenter 
v.  Butterfield,  3  Johns.  Cas.  (N.  Y.)  146 ;  Cheetham  v.  Lewis,  3  Johns. 
(N.  Y.)  42;  Bronson  v.  Earl,  17  Johns.  (N.  Y.)  63;  Ross  v.  Liither,  4 
Cow.  (N.  Y.)  158,  15  Am.  Dec.  341 ;  Mills  v.  Corbett,  8  How.  Prac. 
(N.  Y.)  500;  Hancock  v.  Ritchie,  11  Ind.  48,  52 ;  Howell  v.  Shepard,  48 
Mich.  472,  12  N.  W.  661;  Webster  v.  Sharpe,  116  N.  C.  466,  471,  21 
S.  E.  912. 

I  see  no  reason  why  a  similar  rule  should  not  be  applied  to  crim- 
inal proceedings,  at  least  for  the  purposes  of  such  an  action  as  this. 

Then  there  is  another  reason  resting  on  justice  which  seems  to  me 
to  lead  us  to  adopt  this  conclusion.  In  opposition  to  what  was  said 
in  the  South  Carolina  case  already  referred  to,  the  sole  foundation  for 
an  action  of  malicious  prosecution  is  not  "the  wrong  done  to  the 
plaintiff  by  the  direct  detention  or  imprisonment  of  his  person."  In 
an  action  for  false  imprisonment  that  would  be  so.  But  in  an  action 
of  the  present  type,  the  substantial  injury  for  which  damages  are  re- 
covered and  which  serves  as  a  basis  for  the  action  may  be  that  inflict- 
ed upon  the  feelings,  reputation,  and  character  by  a  false  accusation 
as  well  as  that  caused  by  arrest  and  imprisonment.  This  element  "in- 
deed is  in  many  cases  the  gravamen  of  the  action."  Sheldon  v.  Carpen- 
ter, 4  N.  Y.  579,  580,  55  Am.  Dec.  301 ;  Woods  v.  Finnell,  13  Bush 
(Ky.)  628;  Townsend  on  Slander,  §  420;  Wheeler  v.  Hanson,  161 
Mass.  370,  37  N.  E.  382,  42  Am.  St.  Rep.  408 ;  Gundermann  v.  Busch- 
ner,  73  111.  App.  180;  Lawrence  v.  Hagerman,  56  111.  68,  8  Am.  Rep. 
674;  Davis  v.  Seeley,  91  Iowa,  583,  60  N.  W.  183,  51  Am.  St.  Rep. 
356. 

But,  no  matter  how  false  and  damaging  the  charge  may  be  in  a 
criminal  proceeding  upon  which  a  warrant  may  be  issued,  damages 
for  the  injury  caused  thereby  cannot  under  any  ordinary  circumstances 
be  recovered  in  an  action  for  libel  or  slander.  Howard  v.  Thompson, 
21  Wend.  (N.  Y.)  319,  324,  34  Am.  Dec.  238;  Woods  v.  Wiman,  47 
CHAP  :CAS.TOETS — 19 


290  OBSTRUCTION  AND   PERVERSION   OF   LEGAL  REMEDIES 

Hun  (N.  Y.)  362,  364,  Sheldon  v.  Carpenter,  supra;  Dale  v.  Harris, 
109  Mass.  193 ;  Gabriel  v.  McMullin,  127  Iowa,  427,  103  N.  W.  355 ; 
Hamilton  v.  Eno,  81  N.  Y.  116;  Newell  on  Malicious  Prosecution, 
§  10. 

Therefore  it  follows  that  a  person  who  has  most  grievously  injured 
another  by  falsely  making  a  serious  criminal  accusation  against  him 
whereon  a  warrant  has  been  actually  issued  may  escape  all  liability  by 
procuring  the  warrant  at  that  point  to  be  withheld  unless  an  action  for 
malicious  prosecution  will  lie.  It  seems  to  me  that  under  such  circum- 
stances we  should  hold  that  such  will  lie,  if  for  no  other  reason  than  to 
satisfy  that  principle  of  law  which  demands  an  adequate  remedy  for 
every  legal  wrong. 

Deciding,  therefore,  that  the  appellant's  complaint  does  state  a  cause 
of  action,  we  are  brought  to  the  direct  consideration  of  the  respond- 
ent's answer.  I  do  not  think  that  there  is  such  substantial  difference 
between  the  two  defenses  which  are  questioned  as  calls  for  any  sep- 
arate treatment  of  them.  Liberally  construed,  as  the  pleader  is  en- 
titled to  have  them  in  the  face  of  a  demurrer,  each  one.  amounts  to 
this,  that  the  appellant  fled  from  Mexico  before  the  warrant  could  be 
served  on  him  for  the  purpose  of  avoiding  service,  and  remained  out 
of  the  country  and  beyond  the  jurisdiction  of  the  court  for  such  a 
length  of  time  that  the  criminal  proceeding  was  finally  dismissed,  pre- 
sumably because  prosecution  was  not  and  could  not  be  carried  on.  The 
question  is  whether  a  dismissal  or  discontinuance  of  a  criminal  pro- 
ceeding under  such  circumstances  is  that  kind  of  a  termination  which 
will  support  an  action  for  malicious  prosecution.  If  it  is,  the  answers 
are  bad ;  otherwise,  not. 

While  it  is  elementary  that  a  criminal  proceeding  must  be  terminated 
before  an  action  for  malicious  prosecution  can  be  begun,  there  has  been 
much  discussion  of  the  nature  of  this  necessary  termination.  The 
best  idea  of  what  is  essential  may  be  gathered  by  reference  to  some 
pertinent  authorities. 

In  Wilkinson  v.  Howell,  22  E.  C.  L.  R.  368,  1  M.  &  M.  N.  P.  495, 
it  appeared  that  the  court  in  the  criminal  proceeding  complained  of  had 
ordered  a  stet  processus  with  the  consent  of  the  parties'.  It  was  said 
by  Lord  Tenterden  "that  the  termination  (of  the  criminal  proceeding) 
must  be  such  as  to  furnish  prima  facie  evidence  that  the  action  was 
without  foundation,"  and  that  the  termination  in  question  did  not  fur- 
nish any  such  evidence. 

In  McCormick  v.  Sisson,  7  Cow.  (N.  Y.)  715,  717,  criminal  proceed- 
ings were  suspended  because  the  parties  declared  that  they  had  set- 
tled all  matters  of  difficulty  between  them.  The  court  held  that  there 
was  no  proper  termination  of  the  proceeding,  saying:  "It  is  essential 
that  the  plaintiff  prove  he  has  been  acquitted.  The  discharge  must  be 
in  consequence  of  the  acquittal.  The  action  cannot  be  sustained  unless 
the  proceedings  are  at  an  end  by  reason  of  an  acquittal." 

In  Gallagher  v.  Stoddard,  47  Hun  (N.  Y.)  101,  it  appeared  that  the 


MALICIOUS  PROSECUTION  291 

plaintiff,  after  being  arrested,  paid  the  officer  having  him  in  custody 
some  money,  which  was  receipted  for  by  the  defendant  and  the  officer, 
and  he  was  thereupon  discharged.  It  was  held  that  this  was  not 
enough. 

In  Atwood  v.  Beirne,  73  Hun,  547,  26  N.  Y.  Supp.  149,  it  appeared 
that  there  had  been  cross  criminal  proceedings  and  it  was  arranged 
that  the  respective  complainants  should  be  absent  on  the  days  to  which 
the  proceedings  were  adjourned  and  each  complaint  thus  fell  for  want 
of  prosecution.  It  was  held  that  this  was  not  a  sufficient  termination 
to  support  a  subsequent  action  for  malicious  prosecution. 

In  Jones  v.  Foster,  43  App.  Div.  33,  35,  59  N.  Y.  Supp.  738,  it  was 
said  that  the  theory  on  which  such  an  action  as  this  is  sustainable  "is 
that  the  proceeding  out  of  which  the  action  arose  has  terminated  suc- 
cessfully to  the  defendant,  exonerating  him  from  the  charge  made." 

In  Leyenberger  v.  Paul,  40  111.  App.  516,  it  was  established  that  there 
had  been  an  adjournment  of  the  criminal  proceedings  to  a  certain  day 
and  that  the  attorney  for  the  defendant  in  that  proceeding  in  viola- 
tion of  his  agreement  went  before  the  magistrate  and  procured  the  dis- 
missal of  the  charge  for  want  of  prosecution.  It  was  held  that  this 
was  not  sufficient, ,  the  court  saying:  "But  a  nolle  prosequi  by  consent, 
or  by  way  of  compromise,  or  where  such  exemption  from  further  pros- 
ecution has  been  demanded  as  a  right,  or  sought  for  as  a  favor,  is  not 
enough.  The  principle  of  the  cases  is  that  the  discharge  or  acquittal 
must  be  by  judicial  action  under  such  circumstances  as  that  the  party 
accused  has  not  avoided  or  prevented  judicial  investigation."  *  *  * 

From  all  of  these  authorities  added  to  others  which  are  more  familiar 
I  think  two  rules  fairly  may  be  deduced.  The  first  one  is  that  where 
a  criminal  proceeding  has  been  terminated  in  favor  of  the  accused  by 
judicial  action  of  the  proper  court  or  official  in  any  way  involving  the 
merits  or  propriety  of  the  proceeding  or  by  a  dismissal  or  discontinu- 
ance based  on  some  act  chargeable  to  the  complainant  as  his  con- 
sent or  his  withdrawal  or  abandonment  of  his  prosecution,  a  foundation 
in  this  respect  has  been  laid  for  an  action  of  malicious  prosecution. 
The  other  and  reverse  rule  is  that,  where  the  proceeding  has  been  ter- 
minated without  regard  to  its  merits  or  propriety  by  agreement  or 
settlement  of  the  parties  or  solely  by  the  procurement  of  the  accused 
ar  a  matter  of  favor  or  as  the  result  of  some  act,  trick  or  device  pre- 
venting action  and  consideration  by  the  court,  there  is  no  such  termina- 
tion as  may  be  availed  of  for  the  purpose  of  such  an  action.  The  un- 
derlying distinction  which  leads  to  these  different  rules  is  apparent.  In 
one  case  the  termination  of  the  proceeding  is  of  such  a  character  as 
establishes  or  fairly  implies  lack  of  a  reasonable  ground  for  his  prose- 
cution. In  the  other  case  no  such  implication  reasonably  follows. 
Townsend  on  Slander,  §  423. 

When  we  apply  these  rules  to  the  defenses  which  have  been  pleaded 
it  is  evident  that  they  sufficiently  allege  a  termination  of  the  Mexican 
proceeding  which  is  not  of  a  character  to  sustain  this  action,  and  ought 


292  OBSTRUCTION  AND  PERVERSION   OF  LEGAL  REMEDIES 

not  to  be.  That  proceeding  came  to  a  dismissal  and  end,  not  because 
of  any  judicial  action  in  favor  of  the  accused  for  lack  of  merits  or 
because  of  a  withdrawal  or  abandonment  of  it  by  the  prosecuting  party, 
but  simply  because  the  defendant  therein  succeeded  in  escaping  from 
the  country  and  eluding  the  jurisdiction  of  the  court  and  thereby  pre- 
venting a  prosecution.  He  by  his  flight,  as  in  other  cases  the  accused 
had  done  by  agreement,  settlement  or  trick,  prevented  a  consideration 
of  the  merits,  and  he  ought  not  now  to  be  allowed  to  claim  that  there 
were  no  merits. 

In  some  of  the  cases  refusing  to  allow  the  maintenance  of  such  an 
action  as  this  by  a  party  who  had  procured  a  discontinuance  of  crim- 
inal proceedings  by  settlement,  it  has  been  said  that  the  reason  for  such 
rule  is  that  such  settlement  was  so  far  a  recognition  of  the  propriety 
of  the  proceeding  that  a  party  making  it  is  subsequently  estopped  from 
questioning  them.  It  may  be  that  the  conduct  of  the  present  appellant 
in  fleeing  from  Mexico  was  dicreet  or  even  justifiable  by  virtue  of  facts 
which  do  not  appear  to  us.  At  the  present  time,  however,  it  does  not 
to  my  mind  carry  any  such  presumption  of  innocence  in  connection 
with  the  termination  of  the  proceedings  in  that  country  as  impliedly 
condemns  them  for  having  been  instituted  maliciously  and  without 
ground.  *  *  * 

Therefore  I  think  that  these  cases  do  not  either  singly  or  collective- 
ly sustain  the  burden  which  appellant  has  sought  to  impose  especially 
upon  them  of  furnishing  an  authority  for  the  reversal  of  the  order 
appealed  from  and  for  all  the  reasons  stated  the  latter  should  be  af- 
firmed, with  costs  and  the  questions  certified  to  us  answered  in  the 
negative. 

VANN,  J.  I  concur  in  the  result  because  there  was  merely  an  attempt 
to  prosecute  with  no  actual  prosecution.  The  Mexican  court  did  not 
acquire  jurisdiction  of  the  person  of  the  plaintiff  for  he  was  not  ar- 
rested, nor  was  process  or  notice  of  any  kind  served  upon  him.  He 
was  not  brought  into  court  and  the  prosecution  could  not  end  because 
it  was  never  begun.  He  could  not  be  a  party  defendant  until  he  was 
notified  or  voluntarily  appeared.  He  was  threatened  with  prosecution, 
but  neither  his  person  nor  his  property  was  touched.  There  can  be 
no  prosecution  unless  knowledge  thereof  is  brought  home  to  the  al- 
leged defendant  in  some  way.  If  there  had  been  a  prosecution  com- 
menced the  crime  could  not  have  outlawed  during  the  defendant's 
absence,  as  is  admitted  of  record.  While  in  civil  actions,  in  order  to 
arrest  the  statute  of  limitations,  "an  attempt  to  commence  an  action  in 
a  court  of  record,  is  equivalent  to  the  commencement  thereof,"  still 
the  attempt  goes  for  naught  unless  followed  by  service,  actual  or  con- 
structive, within  sixty  days.  Code  Civ.  Proc.  §  399.  The  rule  was 
similar  at  common  law.  Although,  in  order  to  prevent  injustice,  an 
action  was  deemed  to  be  commenced  by  the  delivery  of  process  for  serv- 
ice, it  was  never  treated  as  effectual  for  any  purpose  unless  actual  serv- 


MALICIOUS  PROSECUTION  293 

ice  was  subsequently  made.     The  authorities  cited  in  the  prevailing 
opinion  illustrate  this  proposition. 

In  the  absence  of  controlling  authority,  which  it  is  conceded  does  not 
exist,  I  favor  restricting  rather  than  enlarging  the  scope  of  the  action. 
This  accords  with  the  general  position  of  the  court  upon  the  subject. 

GRAY,  HAIGHT,  and  CHASE,  JJ.,  concur  with  HISCOCK,  J. 
C.  J.,  and  WILLARD  BARTLETT,  J.,  concur  with  VANN,  J. 

Order  affirmed. 


3.  PROBABLE  CAUSE  FOR  PREVIOUS  PROCEEDING  * 


KNAPP  v.  CHICAGO,  B.  &  Q.  R.  Co. 
(Supreme  Court  of  Iowa,  1001.    113  Iowa,  532,  85  N.  W.  760.) 

A  four-ply  belt,  7  inches  wide  and  47  feet  long,  owned  and  used  by 
the  Chicago,  Burlington  &  Quincy  Railway  in  sawing  wood  near  its 
roundhouse  at  Ottumwa,  was  stolen  June  8,  1898,  and  the  defendant 
Harrison  was  detailed  by  said  company  to  ascertain  the  guilty  parties. 
On  the  eighteenth  of  July  following,  he  filed  a  preliminary  information 
accusing  the  plaintiff  and  his  son  Louis  of  the  crime  and  at  the  same 
time  sued  out  a  search  warrant  for  the  belt,  which  was  supposed  to  be 
the  one  in  use  at  plaintiff's  stone  quarry.  On  hearing,  it  was  found  the 
belt  was  in  value  less  than  $20,  and  the  accused  were  discharged. 
Thereupon  an  information  was  signed  by  Harrison  and  filed  in  which 
the  same  offense  was  alleged ;  the  value  of  the  property  being  correctly 
stated.  Change  of  venue  was  taken,  a  trial  had,  and  the  defendants 
therein  again  discharged.  In  this  action  plaintiff  charges  that  the  pro- 
ceedings mentioned  were  with  malice  and  without  probable  cause. 
The  jury  so  found  and  from  the  judgment  awarding  damages  the  de- 
fendants appeal.  Reversed. 

LADD,  J.  The  railroad  company  is  responsible  in  no  other  respect 
than  as  employer  of  Harrison.  The  latter  had  no  acquaintance  what- 
ever with  the  plaintiff  or  any  member  of  his  family  prior  to  •the  eight- 
eenth of  July,  1898 — the  day  the  preliminary  information  was  filed 
and  the  search  warrant  sued  out.  But  he  had  previously  talked  with 
members  of  the  police  force  and  had  been  advised  that  one  of  plain- 
tiff's sons  was  a  suspicious  character  and  had  been  convicted  of  lar- 
ceny and  served  a  term  in  the  penitentiary ;  and  also  by  Noah,  whose 
beat  included  his  residence  that  plaintiff  had  complained  to  him  of  the 
need  of  a  belt  to  use  in  his  quarry,  being  short  of  money  to  buy  one, 
and  he  (Noah)  had  suggested  that  the  company's  belt  would  be  found 
there.  On  that  day  he  had  gone  with  several  employes  of  the  company 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  100. 


294  OBSTRUCTION   AND   PERVERSION   OF   LEGAL   REMEDIES 

who  had  used  the  belt  in  controversy  in  sawing,  to  plaintiff's  stone 
quarry,  and  together  they  had  examined  that  on  plaintiff's  engine  and 
pump.  These  men  had  positively  identified  the  belt  as  that  of  the 
company — even  pointing  out  identification  marks.  The  belt  had  been 
cut  down  at  one  side  and  buckets  attached.  Upon  his  return  from  one 
trip  to  the  quarry  he  met  plaintiff,  who  declared  the  belt  was  his,  and 
that  he  had  bought  it  of  Harper-Mclntyre  Company,  but  immediately, 
upon  Harrison's  assertion  that  it  was  owned  by  the  company,  plaintiff 
offered  to  pay  what  it  was  worth  for  it,  rather  than  have  any  trouble. 
As  Harrison  estimated  its  value  at  $34  and  Knapp  thought  it  cost  not 
more  than  $16  or  $17,  there  was  no  settlement.  This  was  the  informa- 
tion upon  which  Harrison  acted,  and  which  he  had  laid  before  reputa- 
ble counsel  who  advised  the  prosecution.  Were  the  facts  and  cir- 
cumstances such  as  to  warrant  him,  as  an  ordinarily  cautious  and  pru- 
dent man  in  the  belief  of  defendant's  guilt?  That  a  7-inch  four-ply 
belt  of  the  railroad  company  was  stolen  cannot  be  doubted.  One  em- 
ploye had  purposely  marked  it  by  scratching  a  cross  with  a  file  and  the 
holes  through  which  to  draw  the  whang  strings  had  been  cut  instead 
of  punched.  The  belt  on  the  pump  had  been  cut  off  and  only  part  of 
these  holes  appeared,  but  the  cross  was  visible.  Five  witnesses  insisted 
that  it  was  the  company's  belt,  and  so  testified  on  this  trial.  It  is  said 
that  another  conclusion  would  have  been  reached  had  a  sample  like  the 
company's  belt  been  compared  with  that  on  the  pump.  A  sufficient 
answer  to  this  is  that  these  witnesses  found  them  the  same.  Was 
the  prosecutor  bound  to  disbelieve  them?  Certainly  not,  unless  the 
claim  of  ownership  should  have  led  them  to  make  further  inquiry. 
But  that  claim  was  repudiated  almost  as  soon  as  made,  by  recognizing 
the  company's  title  in  offering  to  pay  the  value  of  the  belt.  Under 
such  circumstances,  Harrison  was  not  bound  to  treat  the  claim  of  pur- 
chase from  Harper-Mclntyre  Company  as  seriously  made.  Even 
if  he  had  inquired  of  that  company,  the  record  disclosed  no  information 
he  might  have  received ;  and,  from  the  fact  that  plaintiff  did  not  avail 
himself  of  the  evidence  of  any  of  its  employes  on  the  trial,  it  may  well 
be  inferred  none  were  able  to  confirm  his  story.  Besides,  neither  the 
existence  nor  location  of  such  a  company  is  shown  by  the  record. 
We  think  that  the  prosecutor  had  the  right  to  conclude  from  the  facts 
then  within  his  knowledge  that  plaintiff  was  in  possession  of  the  stolen 
belt,  and  as  this  was  shortly  after  the  theft,  that  the  latter  was  the 
guilty  person.  The  recent  possession  of  stolen  property  clearly  amounts 
to  probable  cause.  McDonald  v.  Railway  Co.,  3  Ariz.  96,  21  Pac. 
338.  True,  an  explanation  is  admissible  but  the  prosecutor  is  not 
bound  to  seek  it  unless  the  circumstances  are  such  as  to  call  for  an 
investigation.  No  explanation  was  attempted  as  plaintiff  subsequently 
insisted  that  he  was  owner.  Such  cases  must  be  determined  on  the  sit- 
uation as  it  was  at  the  time,  and  not  according  to  subsequent  develop- 
ments. If  Harrison  was  reasonably  diligent  in  ascertaining  the  facts, 


MALICIOUS   PROSECUTION  295 

as  he  certainly  was,  then  the  sole  question  is,  Was  he  justified  in  believ- 
ing plaintiff  guilty  at  the  time  he  began  the  prosecution  ?  Ninety-nine 
men  out  of  a  hundred  would  have  reached  the  same  conclusion,  and 
the  attorney  was  warranted  in  giving  the  advice  upon  which  Harrison 
acted.  The  rule  generally  recognized  was  thus  stated  in  Erb  v.  In- 
surance Co.,  112  Iowa,  357,  83  N.  W.  1053:  "What  facts  and  whether 
particular  facts  constitute  probable  cause  is  a  question  exclusively 
for  the  court."  This  case  presents  a  state  of  facts  calling  for  its  ap- 
plication. We  do  not  say  plaintiff  was  guilty,  for  there  is  much  in  the 
record  tending  to  show  the  contrary  as  to  him ;  nor  is  this  essential  in 
order  to  find  defendants  had  probable  cause.  The  innocent  are  some- 
times erroneously  prosecuted,  but  if  with  probable  cause  owing  to  the 
peculiar  circumstances  hedging  them  in  they  have  no  cause  of  action 
against  -the  prosecutor.  McGillivary  v.  Case,  107  Iowa,  17,  77  N.  W. 
483,  disposes  of  the  appellee's  contention  with  reference  to  the  record. 
Because  of  the  error  in  not  directing  a  verdict  for  defendants,  the  judg- 
ment is  reversed. 


4.  MAUCE  IN  INSTITUTING  PREVIOUS  PROCEEDING  • 


PULLEN  v.  GLIDDEN. 
(Supreme  Judicial  Court  of  Maine,  1877.    66  Me.  202.) 

On  exceptions. 

Case  for  malicious  prosecution. 

The  defendant  made  complaint  for  forgery  against  the  plaintiff 
before  a  magistrate,  on  which  the  plaintiff  was  arrested,  and  after 
examination  acquitted  and  discharged  from  arrest.  The  plaintiff  there- 
upon brought  this  action,  on  the  trial  of  which  the  presiding  justice, 
upon  request  of  the  plaintiff's  counsel,  instructed  the  jury  that  there 
was  no  probable  cause  for  the  prosecution.  He  further  charged  as  ap- 
pears in  the  opinion.  The  verdict  was  for  the  defendant;  and  the 
plaintiff  alleged  exceptions. 

LIBBEY,  J.  This  is  an  action  for  malicious  prosecution.  The  pre- 
siding judge  instructed  the  jury  that  there  was  not  probable  cause  for 
the  prosecution.  Upon  the  question  of  malice  he  instructed  the  jury 
as  follows :  "In  regard  to  the  other  branch  of  the  case  necessary  to  be 
established  by  the  plaintiff,  it  is  that  there  was  malice ;  that  the  prosecu- 
tion was  malicious.  Now,  what  is  'malice?'  There  are  several  kinds 
of  malice ;  but  the  two  kinds  of  malice  that  may  perhaps  be  considered 
in  this  charge  are  malice  in  law  and  malice  in  fact.  Now,  what  is  malice 
in  law  ?  Malice  in  law  is  such  malice  as  is  inferred  from  the  commis- 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  100. 


296  OBSTRUCTION  AND  PERVERSION   OF  LEGAL  REMEDIES 

sion  of  an  act  wrongful  in  itself,  without  justification  or  excuse.  This 
is  not  the  kind  of  malice  required  in  this  case.  The  malice  required 
to  be  proved  in  this  case  is  malice  in  fact.  Malice  in  fact  is  where  the 
wrongful  act  was  committed  with  a  bad  intent,  from  motives  of  ill 
will,  resentment,  hatred,  a  desire  to  injure,  or  the  like.  Did  such  kind 
of  malice  exist  in  the  mind  of  the  defendant  when  he  commenced  the 
prosecution  in  question?  Did  he  do  it  from  bad  intent,  from  evil  mo- 
tives, or  did  he  not?  Malice  may  be  inferred  from  want  of  probable 
cause,  or  it  may  be  inferred  and  proved  by  other  evidence  in  the  case." 
Again :  "If  you  should  find  that  there  was  no  malice,  such  as  I  have  de- 
scribed, the  plaintiff  could  not  maintain  this  action." 

The  plaintiff  complains  that  this  instruction  required  the  jury  to 
find  malice  in  its  more  restricted,  popular  sense,  when  proof  of  malice 
in  its  enlarged,  legal  sense  was  all  that  the  law  requires.  To  maintain 
his  case,  it  was  necessary  for  the  plaintiff  to  prove  malice  in  fact,  as 
distinguished  from  malice  in  law.  Malice  in  law  is  where  malice  is  es- 
tablished by  legal  presumption  from  proof  of  certain  facts,  as  in  ac- 
tions for  libel,  where  the  law  presumes  malice  from  proof  of  the  pub- 
lication of  the  libelous  matter.  Malice  in  fact  is  to  be  found  by  the  jury 
from  the  evidence  in  the  case.  They  may  infer  it  from  want  of  prob- 
able cause.  But  it  is  well  established  that  the  plaintiff  is  not  required  to 
prove  "express  malice,"  in  the  popular  signification  of  the  term,  as  that 
defendant  was  prompted  by  malevolence,  or  acted  from  motives  of  ill 
will,  resentment,  or  hatred  towards  the  plaintiff.  It  is  sufficient  if  he 
prove  it  in  its  enlarged,  legal  sense.  "In  a  legal  sense,  any  act  done 
willfully  and  purposely,  to  the  prejudice  and  injury  of  another,  which 
is  unlawful,  is,  as  against  that  person,  malicious."  Commonwealth  v. 
Snelling,  15  Pick.  (Mass.)  337.  "The  malice  necessary  to  be  shown,  in 
order  to  maintain  this  action,  is  not  necessarily  revenge,  or  other  base 
and  malignant  passion.  Whatever  is  done  willfully  and  purposely,  if 
it  be  at  the  same  time  wrong  and  unlawful,  and  that  known  to  the  par- 
ty, is,  in  legal  contemplation,  malicious."  Wills  v.  Noyes,  12  Pick. 
(Mass.)  324.  See,  also,  Page  v.  Gushing,  38  Me.  523 ;  Humphries  v. 
Parker,  52  Me.  502;  Mitchell  v.  Wall,  111  Mass.  492.  We  think,  from 
a  fair  construction  of  the  instruction  upon  this  point,  the  jury  must 
have  understood  that,  in  order  to  find  for  the  plaintiff,  they  must  find 
that  the  defendant,  in  prosecuting  the  plaintiff,  was  actuated  by  "ex- 
press malice,"  in  the  popular  sense  of  the  term.  In  this  respect  it  was 
erroneous. 

Exceptions  sustained. 

APPLETON,  C.  J.,  and  DICKERSON,  DANFORTH,  VIRGIN,  and  PETERS, 
JJ.,  concurred. 


MALICIOUS  ABUSE   OF  PEOCES3  297 


5.  TERMINATION  OF  PREVIOUS  PROCEEDING  T 


See  Luby  v.  Bennett,  supra,  p.  279,  and  Halberstadt  v.  New  York 
Life  Ins.  Co.,  supra,  p.  286. 


II.  Malicious  Abuse  of  Process* 


GRAINGER  v.  HILL. 

(Court  of  Common  Pleas,  1838.    4  Bing.  N.  C.  212.) 

TINDAL,  C.  J.9  This  is  a  special  action  on  the  case,  in  which  the 
plaintiff  declares  that  he  was  the  master  and  owner  of  a  vessel  which, 
in  September,  1836,  he  mortgaged  to  the  defendant  for  the  sum  of 
£80,  with  a  covenant  for  repayment  in  September,  1837,  and  under  a 
stipulation  that,  in  the  meantime,  the  plaintiff  should  retain  the  com- 
mand of  the  vessel,  and  prosecute  voyages  therein  for  his  own  profit ; 
that  the  defendants,  in  order  to  compel  the  plaintiff  through  duress  to 
give  up  the  register  of  the  vessel,  without  which  he  could  not  go  to  sea 
before  the  money  lent  on  mortgage  became  due,  threatened  to  arrest 
him  for  the  same  unless  he  immediately  paid  the  amount ;  that,  upon 
the  plaintiff  refusing  to  pay  it,  the  defendants,  knowing  he  could  not 
provide  bail,  arrested  him  under  a  capias,  indorsed  to  levy  £95.  17s.  6d., 
and  kept  him  imprisoned,  until,  by  duress,  he  was  compelled  to  give 
up  the  register,  which  the  defendants  then  unlawfully  detained ;  by 
means  whereof  the  plaintiff  lost  four  voyages  from  London  to  Caen. 
There  is  also  a  count  in  trover  for  the  register.  The  defendants  plead- 
ed the  general  issue;  and,  after  a  verdict  for  the  plaintiff,  the  case 
comes  before  us  on  a  double  ground,  under  an  application  for  a  nonsuit, 
and  in  arrest  of  judgment.  *  *  * 

The  second  ground  urged  for  a  nonsuit  is  that  there  was  no  proof  of 
the  suit  commenced  by  the.  defendants  having  been  terminated.  But 
the  answer  to  this  and  to  the  objection  urged  in  arrest  of  judgment, 
namely,  the  omission  to  allege  want  of  reasonable  and  probable  cause 
for  the  defendants'  proceeding,  is  the  same — that  this  is  an  action  for 
abusing  the  process  of  the  law,  by  applying  it  to  extort  property  from 
the  plaintiff,  and  not  an  action  for  a  malicious  arrest  or  malicious  pros- 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  100. 
«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  101. 
»  The  statement  of  facts,  portions  of  the  opinion  of  Tindal,  C.  J.,  -and  the  en- 
tire opinions  of  Park,  Vaughan,  and  Eosanquet,  JJ.,  are  omitted. 


298  OBSTRUCTION   AND   PERVERSION   OF   LEGAL  REMEDIES 

ecution,  in  order  to  support  which  action  the  termination  of  the  previous 
proceeding  must  be  proved,  and  the  absence  of  reasonable  and  probable 
cause  be  alleged  as  well  as  proved.  In  the  case  of  a  malicious  arrest, 
the  sheriff  at  least  is  instructed  to  pursue  the  exigency  of  the  writ ; 
here  the  directions  given,  to  compel  the  plaintiff  to  yield  up  the  register, 
were  no  part  of  the  duty  enjoined  by  the  writ.  If  the  course  pursued 
by  the  defendants  is  such  that  there  is  no  precedent  of  a  similar 
transaction,  the  plaintiff's  remedy  is  by  an  action  on  the  case,  applica- 
ble to  such  new  and  special  circumstances ;  and  his  complaint  being 
that  the  process  of  the  law  has  been  abused,  to  effect  an  object  not 
within  the  scope  of  the  process,  it  is  immaterial  whether  the  suit  which 
that  process  commenced  has  been  determined  or  not,  or  whether  or 
not  it  was  founded  on  reasonable  and  probable  cause.  *  *  * 


III.  Unauthorized  Suit  in  Another's  Name  10 


BOND  v.  CHAPIN. 
(Supreme  Judicial  Court  of  Massachusetts,  1844.     8  Mete.  31.) 

This  case  came  before  the  court  on  the  following  bill  of  exceptions, 
signed  by  the  judge  before  whom  a  trial  was  had  in  the  court  of  com- 
mon pleas  :  ''This  is  an  action  on  the  case  for  damages  for  the  wrongful 
and  injurious  commencement  and  prosecution,  by  the  defendant,  of  an 
action  in  the  name  of  one  Thomas  Bond,  against  the  now  plaintiff, 
without  probable  cause,  and  without  authority  so  to  do.  The  declaration 
is  in  the  case,  and  may  be  referred  to.  The  evidence  was  submitted 
to  the  jury,  with  instructions  from  the  court,  that  in  order  to  entitle 
the  plaintiff  to  a  verdict,  he  must  prove  the  former  action  to  have  been 
commenced  and  prosecuted  maliciously,  that  is  to  say,  with  some  im- 
proper motive,  or  without  due  care  to  ascertain  his  rights,  as  well  as 
without  authority  and  without  probable  cause.  The  jury  returned  a 
verdict  for  the  defendant,  and  the  plaintiff,  feeling  himself  aggrieved 
by  the  instructions  aforesaid,  files  his  exceptions  thereto,"  etc. 

HUBBARD,  J.11  *  *  *  In  the  present  suit,  which  is  an  action 
on  the  case  against  the  defendant  for  prosecuting  a  suit  in  the  name  of 
Thomas  Bond  against  the  plaintiff,  the  plaintiff  avers,  in  his  declara- 
tion (which  accompanies  the  exceptions),  that  the  defendant,  without 
authority  from  said  Thomas  and  having  no  reasonable  ground  for 
believing  that  anything  was  due  from  the  plaintiff  to  him,  attached  the 
plaintiff's  property,  and  prosecuted  said  suit  against  him,  from  No- 

10  For  discussion  of  principles,  see  Chapin  on  Torts,  §  102. 

11  A  portion  of  the  opinion  is  omitted. 


UNAUTHORIZED   SUIT   IN   ANOTHER'S   NAME  299 

vcmber  term,  1840,  to  November  term,  1841,  when  he  became  nonsuit; 
and  evidence  was  offered  tending  to  prove  these  allegations.  The  in- 
structions to  the  jury  were  that  "the  plaintiff  must  prove  the  former 
action  to  have  been  commenced  and  prosecuted  maliciously,  that  is  to 
say,  with  some  improper  motive,  or  without  due  care  to  ascertain  his 
rights,  as  well  as  without  authority,  and  without  probable  cause."  The 
error  complained  of  may  have  arisen  from  not  distinguishing,  during 
the  trial,  between  an  action  on  the  case  for  malicious  prosecution  and 
an  action  on  the  case  for  prosecuting  a  suit  in  the  name  of  a  third  per- 
son, without  authority,  by  reason  of  which  the  defendant  sustains  in- 
jury. 

In  a  suit  for  malicious  prosecution,  the  gist  of  the  action  is  malice ; 
but  there  must  also  exist  the  want  of  probable  cause.  And,  without  the 
proof  of  both  facts,  the  action  cannot  be  maintained,  though  the  exist- 
ence of  malice  may  often  be  inferred  from  the  want  of  probable  cause. 
But  in  an  action  on  the  case  for  damages  for  prosecuting  a  suit 
against  the  plaintiff  without  authority,  in  the  name  of  a  third  person, 
the  gist  of  the  action  is  not  a  want  of  probable  cause ;  for  there  may 
be  a  good  cause  of  action;  but  for  the  improper  liberty  of  using  the 
name  of  another  person  in  prosecuting  a  suit,  by  which  the  defendant 
in  the  action  is  injured.  Nor  is  the  proof  of  malice  essential  to  the 
maintenance  of  such  action.  If  the  party  supposes  he  has  authority  to 
commence  a  suit,  when  in  fact  he  has  none,  and  the  nominal  plaintiff 
does  not  adopt  it,  the  action  fails  for  want  of  such  authority.  In  such 
case,  though  the  party  supposed  he  had  authority,  and  acted  upon 
that  supposition,  without  malice,  still,  if  the  defendant  suffers  injury 
by  reason  of  the  prosecution  of  the  unauthorized  suit  against  him,  he 
may  maintain  an  action  for  the  actual  damages  sustained  by  him,  in 
the  loss  of  time,  and  for  money  paid  to  procure  the  discontinuance 
of  the  suit,  but  nothing  more.  Where,  however,  in  addition  to  a 
want  of  authority,  the  suit  commenced  was  altogether  groundless,  and 
was  prosecuted  with  malicious  motives — which  may  be  inferred  from 
there  existing  no  right  of  action,  as  well  as  proved  in  other  ways — 
then,  in  addition  to  the  actual  loss  of  time  and  money,  the  party  may 
recover  damages  for  the  injury  inflicted  on  his  feelings  and  repu- 
tation. 

In  this  case,  the  learned  judge  having  instructed  the  jury  that  a 
want  of  probable  cause  and  malice  must  concur  with  the  want  of  author- 
ity to  commence  the  suit  in  the  name  of  a  third  person,  to  enable  the 
plaintiff  to  maintain  the  action,  we  think  there  was  error  in  the  in- 
struction, and  that,  though  the  damages  might  be  enhanced  by  showing 
malice  and  a  want  of  probable  cause,  yet  that  the  proof  of  them  is  not 
essential  to  the  maintenance  of  the  action. 

New  trial  granted. 


300  OBSTRUCTION  AND  PERVERSION  OF  LEGAL  REMEDIES 


IV.  Maintenance  and  Champerty19 
GEER  v.  FRANK. 

(Supreme  Court  of  Illinois,  1899.    179  111.  570,  53  N.  E.  965,  45  L.  R  A.  110.) 

CARTWRIGHT,  J.  David  S.  Geer  filed  the  original  bill  in  this  case 
in  the  superior  court  of  Cook  county,  alleging  that  on  August  29,  1895, 
he  entered  into  an  agreement  with  Robert  J.  Frank,  by  which  Frank 
assigned  to  him  an  undivided  one-third  of  a  claim  of  said  Frank  against 
the  American  Automatic  Lighting  Company,  F.  A.  Cody,  and  L.  T. 
Lawton,  in  consideration  of  his  services  to  be  rendered  in  prosecuting 
the  same ;  that  Frank  agreed  that  he  would  not  make  any  compromise, 
settlement,  release,  or  satisfaction  of  the  claim,  without  Geer's  con- 
sent ;  that  Geer  prosecuted  the  case,  and  obtained  a  judgment  in  favor 
of  Frank  for  $1,007.66  and  costs;  that  Frank  settled  the  judgment 
with  the  defendants  therein,  and  satisfied  the  same,  and  refused  to 
account;  and  that  J.  L.  Bennett  claimed  some  interest  in  the  fund. 
The  bill  made  said  parties  defendants,  together  with  others  who  were 
alleged  to  have  the  fund  or  some  portion  of  it,  and  prayed  for  the 
appointment  of  a  receiver  and  an  accounting,  and  a  decree  for  the 
sum  due.  Bennett  answered  the  bill,  admitting  its  averments,  and  filed 
a  cross-bill  setting  out  the  agreement  in  haec  verba,  as  follows:  "It 
is  agreed,  by  and  between  Robert  J.  Frank,  David  S.  Geer,  and  J.  L. 
Bennett,  that  said  Frank  assigns  to  said  Geer  and  Bennett  each  a  one- 
third  interest  in  his  claim  against  the  American  Automatic  Lighting 
Company,  Cody,  and  Lawton.  Said  Geer,  in  consideration  of  said  as- 
signment, is  to  give  his  legal  services,  in  conjunction  with  said  Bennett, 
to  the  prosecution  of  any  suits  or  other  proceedings  for  the  liquidation 
and  settlement  of  said  claim.  Said  Bennett,  in  consideration  of  said 
assignment,  is  to  pay  the  necessary  expenses,  in  the  way  of  cash  out- 
lays, for  court  costs,  etc.,  and  give  an  equal  amount  of  his  legal  serv- 
ices, in  the  same  manner  as  Mr.  Geer.  For  the  costs  and  expenses 
already  paid,  said  Bennett  has  paid  said  Frank  $25  in  cash,  and  is 
to  pay  the  balance,  as  requested  by  said  Frank.  It  is  agreed  by  all 
of  said  parties  that  no  settlement  or  compromise  of  said  claim  shall 
be  made  without  the  assent  of  all  parties.  Chicago,  111.,  August  29, 
1895.  Robert  J.  Frank.  David  S.  Geer.  J.  L.  Bennett."  Bennett 
then  alleged  in  his  cross-bill  that  he  rendered  services  as  an  attorney, 
in  conjunction  with  Geer,  in  the  collection  of  the  claim,  and  paid 
Frank  $59.69,  on  his  request,  under  the  agreement  to  pay  costs  and  ex- 
penses, and  that  Frank  settled  the  judgment  for  $700,  and  refused  to 
« 

12  For  discussion  of  principles,  see  Chapin  on  Torts,  §  103. 


MAINTENANCE  AND  CHAMPERTY  301 

account.  He  therefore  asked  for  a  decree  for  what  was  due  him. 
The  bill  and  cross-bill  were  answered  by  the  other  defendants;  and 
Frank  denied  the  right  of  Geer  and  Bennett,  or  either  of  them,  to  an 
accounting,  alleged  that  the  contract  was  not  performed  or  his  suit 
properly  prosecuted,  and  charged  that  the  agreement  was  unlawful. 
Upon  a  hearing,  the  superior  court  dismissed  the  bill  and  cross-bill, 
and  the  complainant  in  each  appealed.  The  appellate  court  affirmed  the 
decree,  and  granted  a  certificate  of  importance,  by  virtue  of  which 
Geer  and  Bennett  are  in  this  court  as  appellants,  asking  a  reversal  of 
the  judgment  of  the  appellate  court.  It  appeared,  on  the  hearing,  that 
there  had  been  an  agreement  between  Geer  and  Frank,  previous  to  the 
one  of  August  29,  1895,  alleged  in  the  bill  and  set  out  in  the  cross- 
bill, by  which  previous  agreement  Geer  was  to  prosecute  the  claim,  and 
receive  one-half  the  amount  recovered  or  received,  in  settlement  for  his 
professional  services,  and  Frank  was  to  advance  the  costs.  That 
agreement  is  not  a  subject  for  consideration  here,  both  because  it  was 
not  alleged  in  the  bill  or  made  a  foundation  for  any  claim,  and  because 
it  was  abandoned,  and  the  agreement  so  alleged  between  the  three 
parties  was  substituted  for  it. 

Disregarding  all  other  questions  argued,  we  are  of  the  opinion  that 
the  agreement  is  illegal  and  void.  It  was  said  in  Newkirk  v.  Cone, 
18  111.  449,  that  the  common  law  of  champerty  had  been  abolished  in 
this  state,  but  this  statement  was  corrected  in  Thompson  v.  Reynolds, 
73  111.  11,  where  it  was  said  the  former  decision  was  manifestly  a 
mistake,  and  that  the  question  was  not  involved  in  such  former  deci- 
sion, the  champertous  agreement  having  been  abandoned  by  the  par- 
ties, by  mutual  consent.  The  law  of  champerty  has  been  somewhat 
qualified  by  our  decisions,  but  it  is  a  part  of  the  law  of  the  state.  We 
have  held,  in  consonance  with  the  great  weight  of  modern  authority, 
that  an  attorney  may  make  an  agreement  for  contingent  fees  of  a 
legitimate  character,  by  which  he  is  to  receive  a  certain  share  or  part 
of  the  money  or  thing  recovered.  Commissioners  v.  Coleman,  108 
111.  591 ;  Phillips  v.  Commissioners,  119  111.  626,  10  N.  E.  230.  In  such 
a  case,  he  has  no  interest  in  the  litigation,  except  that  of  an  attorney, 
and  to  the  extent  of  his  legal  services ;  and  if  such  a  contract  is  not 
against  conscience,  and  reasonable  in  its  terms,  a  court  of  equity  would 
doubtless  enforce  it.  The  law,  however,  does  not  permit  a  person 
having  no  interest  in  the  subject-matter  of  a  suit  to  become  interested 
in  it,  and  concerned  in  its  prosecution;  and  an  agreement  by  which 
such  person,  although  an  attorney,  agrees  to  bear  expense  and  costs 
of  litigation,  falls  within  the  definition  of  champerty,  and  will  not  be 
enforced,  either  at  law  or  in  equity.  Gilbert  v.  Holmes,  64  111.  548; 
Thompson  v.  Reynolds,  supra.  Under  these  rules,  the  agreement  be- 
tween Bennett  and  Frank  was  champertous,  and  the  undertakings  of 
Geer  and  Bennett  were  so  mutually  dependent  upon  each  other,  as  a 
consideration  for  the  agreement  of  Frank,  that  the  whole  contract  was 


302  OBSTRUCTION  AND   PERVERSION   OF  LEGAL   REMEDIES 

tainted  with  illegality.  The  considerations  for  Frank's  promise  were 
the  agreement  of  Geer  to  render  legal  services  in  conjunction  with 
Bennett,  Bennett's  agreement  to  render  legal  services  in  conjunction 
with  Geer,  and  Bennett's  agreement  to  pay  the  costs  and  expenses.  The 
agreement  could  not  be  performed,  and  Geer  render  the  services  which 
he  promised,  except  by  Bennett  carrying  out  his  champertous  agree- 
ment, and  it  was  so  executed.  The  undertakings  cannot  be  separated, 
and,  one  of  the  considerations  inducing  the  promise  of  Frank  being 
illegal,  the  entire  contract  is  void,  and  a  court  of  equity  will  not  aid 
in  its  enforcement. 
The  judgment  of  the  appellate  court  is  affirmed.  Judgment  affirmed. 


NEGLIGENCE  303 

NEGLIGENCE 
I.  Duty  of  Occupant  of  Land 

1.  TO   TRESPASSER1 

FROST  v.  EASTERN  R.  R. 

(Supreme  Court  of  New  Hampshire,  1887.    64  N.  H.  220,  9  Atl.  790,  10  Am. 

St.  Rep.  396.) 

Case,  for  personal  injuries  from  the  alleged  negligence  of  the  de- 
fendants in  not  properly  guarding  and  securing  a  turntable.  The 
plaintiff,  who  sues  by  his  father  and  next  friend,  was  seven  years  old 
when  the  accident  occurred.  Plea,  the  general  issue.  A  motion  for  a 
nonsuit  was  denied,  and  the  defendants  excepted.  Verdict  for  the 
plaintiff. 

CLARK,  J.  The  ground  of  the  action  is  that  the  defendants  were 
guilty  of  negligence  in  maintaining  a  turntable  insecurely  guarded, 
which,  being  wrongfully  set  in  motion  by  older  boys,  caused  an  injury 
to  the  plaintiff,  who  was  at  that  time  seven  years  old,  and  was  attract- 
ed to  the  turntable  by  the  noise  of  the  older  and  larger  boys  turning 
and  playing  upon  it.  The  turntable  was  situated  on  the  defendants' 
land,  about  sixty  feet  from  the  public  street,  in  a  cut  with  high,  steep 
embankments  on  each  side;  and  the  land  on  each  side  was  private 
property  and  fenced.  It  was  fastened  by  a  toggle,  which  prevented  its 
being  set  in  motion  unless  the  toggle  was  drawn  by  a  lever,  to  which 
was  attached  a  switch  padlock,  which  being  locked  prevented  the  lever 
from  being  used  unless  the  staple  was  drawn.  At  the  time  of  the  acci- 
dent the  turntable  was  fastened  by  the  toggle,  but  it  was  a  controvert- 
ed point  whether  the  padlock  was  then  locked.  When  secured  by  the 
toggle  and  not  locked  with  the  padlock,  the  turntable  could  not  be  set 
in  motion  by  boys  of  the  age  and  strength  of  the  plaintiff. 

Upon  these  facts  we  think  the  action  cannot  be  maintained.  The 
alleged  negligence  complained  of  relates  to  the  construction  and  con- 
dition of  the  turntable,  and  it  is  not  claimed  that  the  defendants  were 
guilty  of  any  active  misconduct  towards  the  plaintiff.  The  right  of  a 
landowner  in  the  use  of  his  own  land  is  not  limited  or  qualified  like 
the  enjoyment  of  a  right  or  privilege  in  which  others  have  an  interest, 
as  the  use  of  a  street  for  highway  purposes  under  the  general  law,  or 
for  other  purposes  under  special  license  (Moynihan  v.  Whidden,  143 
Mass.  287,  9  N.  E.  645),  where  care  must  be  taken  not  to  infringe 
upon  the  lawful  rights  of  others..  At  the  time  of  his  injury  the  plain- 

iFor  discussion  of  principles,  see  Chapin  on  Torts,  §  106. 


304  NEGLIGENCE 

tiff  was  using  the  defendants'  premises  as  a  playground  without  right. 
The  turntable  was  required  in  operating  the  defendants'  railroad.  It 
was  located  on  its  own  land  so  far  removed  from  the  highway  as  not 
to  interfere  with  the  convenience^  and  safety  of  the  public  travel,  and 
it  was  not  a  trap  set  for  the  purpose  of  injuring  trespassers.  Aldrich 
v.  Wright,  53  N.  H.  404,  16  Am.  Rep.  339.  Under  these  circumstanc- 
es, the  defendants  owed  no  duty  to  the  plaintiff;  and  there  can  be  no 
negligence  or  breach  of  duty  where  there  is  no  act  or  service  which 
the  party  is  bound  to  perform  or  fulfil.  A  landowner  is  not  required 
to  take  active  measures  to  insure  the  safety  of  intruders,  nor  is  he 
liable  for  an  injury  resulting  from  the  lawful  use  of  his  premises  to 
one  entering  upon  them  without  right.  A  trespasser  ordinarily  as- 
sumes all  risk  of  danger  from  the  condition  of  the  premises;  anjd  to 
recover  for  an  injury  happening  to  him  he  must  show  that  it  was  wan- 
tonly inflicted,  or  that  the  owner  or  occupant,  being  present  and  act- 
ing, might  have  prevented  the  injury,  by  the  exercise  of  reasonable 
care  after  discovering  the  danger.  Clark  v.  Manchester,  62  N.  H.  577 ; 
State  v.  Railroad,  52  N.  H.  528 ;  Sweeny  v.  Railroad,  10  Allen  (Mass.) 
368,  87  Am.  Dec.  644;  Morrissey  v.  Railroad,  126  Mass.  377,  30  Am. 
Rep.  686;  Severy  v.  Nickerson,  120  Mass.  306,  21  Am.  Rep.  514; 
Morgan  v.  Hallowell,  57  Me.  375 ;  Pierce  v.  Whitcomb,  48  Vt.  127,  21 
Am.  Rep.  120;  McAlpin  v.  Powell,  70  N.  Y.  126,  26  Am.  Rep.  555; 
St.  L.  &  T.  H.  R.  R.  Co.  v.  Bell,  81  111.  76,  25  Am.  Rep.  269;  Gavin 
v.  Chicago,  97  111.  66,  37  Am.  Rep.  99;  Wood  v.  School  District,  44 
Iowa,  27;  Gramlich  v.  Wurst,  86  Pa.  74,  27  Am.  Rep.  684;  Cauley  v. 
P.  C.  &  St.  Louis  Railway  Co.,  95  Pa.  398,  40  Am.  Rep.  664;  Gillespie 
v.  McGowan,  100  Pa.  144,  45  Am.  Rep.  365 ;  Mangan  v.  Atterton,  L. 
R.  1  Ex.  239.  The  maxim  that  a  man  must  use  his  property  so  as  not 
to  incommode  his  neighbor  only  applies  to  neighbors  who  do  not  inter- 
fere with  it  or  enter  upon  it.  Knight  v.  Abert,  6  Pa.  472,  47  Am.  Dec. 
478.  To  hold  the  owner  liable  for  consequential  damages  happening 
to  trespassers  from  the  lawful  and  beneficial  use  of  his  own  land  would 
be  an  unreasonable  restriction  of  his  enjoyment  of  it. 

We  are  not  prepared  to  adopt  the  doctrine  of  Railroad  Co.  v.  Stout, 
17  Wall.  657,  21  L,.  Ed.  745,  and  cases  following  it,  that  the  owner  of 
machinery  or  other  property  attractive  to  children  is  liable  for  injuries 
happening  to  children  wrongfully  interfering  with  it  on  his  own  prem- 
ises. The  owner  is  not  an  insurer  of  the  safety  of  infant  trespassers. 
One  having  in  his  possession  agricultural  or  mechanical  tools  is  not 
responsible  for  injuries  caused  to  trespassers  by  careless  handling, 
nor  is  the  owner  of  a  fruit  tree  bound  to  cut  it  down  or  enclose  it,  or 
to  exercise  card  in  securing  the  staple  and  lock  with  which  his  ladder 
is  fastened,  for  the  protection  of  trespassing  boys  who  may  be  attract- 
ed by  the  fruit.  Neither  is  the  owner  or  occupant  of  premises  upon 
which  there  is  a  natural  or  artificial  pond,  or  a  blueberry  pasture,  le- 
gally required  to  exercise  care  in  securing  his  gates  and  bars  to  guard 
against  accidents  to  straying  and  trespassing  children.  The  owner  is 


DUTY   OF   OCCUPANT   OF   LAND  305 

under  no  duty  to  a  mere  trespasser  to  keep  his  premises  safe ;  and  the 
fact  that  the  trespasser  is  an  infant  cannot  have  the  effect  to  raise  a 
duty  where  none  otherwise  exists.  "The  supposed  duty  has  regard  to 
the  public  at  large,  and  cannot  well  exist  as  to  one  portion  of  the  pub- 
lic and  not  to  another,  under  the  same  circumstances.  In  this  respect 
children,  women,  and  men  are  upon  the  same  footing.  In  cases  where 
certain  duties  exist,  infants  may  require  greater  care  than  adults,  or  a 
different  care;  but  precautionary  measures  having  for  their  object  the 
protection  of  the  public  must  as  a  rule  have  reference  to  all  classes 
alike."  Nolan  v.  N.  Y.,  N.  H.  &  H.  Railroad  Co.,  53  Conn.  461,  4 
Atl.  106. 

There  being  no  evidence  to  charge  the  defendants  with  negligence, 
the  motion  for  a  nonsuit  should  have  been  granted. 


2.  To  LICENSEE" 


PLUMMER  v.  DILL. 

(Supreme  Judicial  Court  of  Massachusetts,  1892.     156  Mass.  426,  31  N.  E.  128, 

32  Am.  St.  Rep.  463.) 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  striking 
her  head  upon  a  projecting  sign  placed  against  a  post  at  the  outside 
corner  of  the  landing  of  the  defendant's  building.  A  verdict  was  di- 
rected for  the  defendant ;  and  the  plaintiff  alleged  exceptions. 

KNOWLTON,  J.s  If  we  assume  that  it  was  the  duty  of  the  defendant 
to  keep  the  entrance,  stairway,  and  halls  of  his  building  reasonably 
safe  for  persons  using  them  on  an  invitation  express  or  implied,  and  if 
we  further  assume  that  he  negligently  permitted  them  to  be  unsafe, 
and  that  his  negligence  caused  the  injury  to  the  plaintiff,  and  that  she 
was  in  the  exercise  of  due  care — some  of  which  propositions  are  at 
least  questionable — we  come  to  the  inquiry  whether  the  plaintiff  was 
a  mere  licensee  in  the  building,  or  was  there  by  the  defendant's  implied 
invitation. 

She  did  not  go  there  to  transact  with  any  occupant  of  the  building 
any  kind  of  business  in  which  he  was  engaged,  or  in  the  transaction 
of  which  the  building  was  used  or  designed  to  be  used.  She  was  in 
search  of  a  servant;  and  for  her  own  convenience  she  went  there  to 
inquire  about  a  matter  which  concerned  herself  alone. 

It  has  often  been  held  that  the  owner  of  land  or  a  building,  who  has 
it  in  charge,  is  bound  to  be  careful  and  diligent  in  keeping  it  safe  for 

2  For  discussion  of  principles,  see  Chapin  on  Torts,  §  106. 
»  A  portion  of  the  opinion  ig  omitted. 
CHAP.  CAS.  TORTS — 20 


306  NEGLIGENCE 

those  who  come  there  by  his  invitation  express  or  implied,  but  that  he 
owes  no  such  duty  to  those  who  come  there  for  their  own  convenience, 
or  as  mere  licensees.  Sweeny  v.  Old  Colony  &  Newport  Railroad,  10 
Allen,  368,  87  Am.  Dec.  644;  Metcalfe  v.  Cunard  Steamship  Co.,  147 
Mass.  66,  16  N.  E.  701 ;  Gordon  v.  Cummings,  152  Mass.  513,  25  N.  E. 
978,  9  L.  R.  A.  640,  23  Am.  St.  Rep.  846.  One  who  puts  a  building  or 
a  part  of  a  building  to  use  in  a  business,  and  fits  it  up  so  as  to  show 
the  use  to  which  it  is  adapted,  impliedly  invites  all  persons  to  come 
there  whose  coming  is  naturally  incident  to  the  prosecution  of  the 
business.  If  the  place  is  open,  and  there  is  nothing  to  indicate  that 
strangers  are  not  wanted,  he  impliedly  permits  and  licenses  persons  to 
come  there  for  their  own  convenience,  or  to  gratify  their  curiosity. 
The  mere  fact  that  premises  are  fitted  conveniently  for  use  by  the  own- 
er or  his  tenants,  and  by  those  who  come  to  transact  such  business  as 
is  carried  on  there,  does  not  constitute  an  implied  invitation  to  stran- 
gers to  come  and  use  the  place  for  purposes  of  their  own.  To  such 
persons  it  gives  no  more  than  an  implied  license  to  come  for  any 
proper  purpose. 

It  is  held  in  England  that  one  who  comes  on  an  express  invitation 
to  enjoy  hospitality  as  a  guest  must  take  the  house  as  he  finds  it,  and 
that  his  right  to  recover  for  any  injury  growing  out  of  dangers  on 
the  premises  is  no  greater  than  that  of  a  mere  licensee.  Southcote  v. 
Stanley,  1  H.  &  N.  247.  The  principle  of  the  decision  seems  to  be 
that  a  guest,  who  is  receiving  the  gratuitous  favors  of  another,  has 
no  such  relation  to  him  as  to  create  a  duty  to  make  the  place  where 
hospitality  is  tendered  safer  or  better  than  it  is.  It  is  well  settled 
there  that  to  come  under  an  implied  invitation,  as  distinguished  from 
a  mere  license,  the  visitor  must  come  for  a  purpose  connected  with 
the  business  in  which  the  occupant  is  engaged,  or  which  he  permits  to 
be  carried  on  there.  There  must  at  least  be  some  mutuality  of  inter- 
est in  the  subject  to  which  the  visitor's  business  relates,  although  the 
particular  thing  which  is  the  object  of  the  visit  may  not  be  for  the 
benefit  of  the  occupant.  Pollock  on  Torts,  417;  Holmes  v.  North 
Eastern  Railway,  L.  R.  4  Ex.  254;  S.  C.  L.  R.  6  Ex.  123;  White  v. 
France,  2  C.  P.  D.  308;  Burchell  v.  Hickisson,  50  L.  J.  Q.  B.  101. 

The  rule  in  regard  to  an  implied  invitation  to  places  of  business  is 
held  with  equal  strictness  in  New  York.  In  Larmore  v.  Crown  Point 
Iron  Co.,  101  N.  Y.  391,  4  N.  E.  752,  54  Am.  Rep.  718,  it  was  decided 
that  a  person,  who  entered  on  the  defendant's  premises  to  see  if  the 
defendant  would  give  him  employment,  was  a  mere  licensee,  and  that 
the  defendant  was  not  liable  to  him  for  an  injury  caused  by  the  unsafe 
condition  of  the  place.  The  diligence  of  counsel  and  an  extended 
examination  of  the  authorities  have  failed  to  bring  to  our  attention 
any  case  in  which  the  owner  or  occupant  of  a  place  fitted  up  for  ordi- 
nary use  in  business  has  been  held  by  the  condition  of  his  premises  im- 
pliedly to  invite  persons  to  come  there  for  a  purpose  in  which  the  oc- 
cupant had  no  interest,  and  which  had  no  connection  with  the  business 


DUTY   OF   OCCUPANT   OF  LAND  307 

actually  or  apparently  carried  on  there.  Precisely  how  far,  under  all 
circumstances,  an  implied  invitation  extends  in  reference  to  the  per- 
sons to  be  included  in  it,  has  not  been  the  subject  of  very  full  consid- 
eration in  this  commonwealth,  and  is  hardly  capable  of  exact  state- 
ment. But  in  many  cases  there  is  language  indicating  that  the  invita- 
tion extends  only  to  those  who  come  on  business  connected  with  that 
carried  on  at  the  place,  and  for  the  transaction  of  which  the  place  is 
apparently  intended.  In  Severy  v.  Nickerson,  120  Mass.  306,  21  Am. 
Rep.  514,  Mr.  Justice  Devens  says:  "There  is  no  duty  imposed  upon 
an  owner  or  occupant  of  premises  to  keep  them  in  a  suitable  condition 
for  those  who  come  there  for  their  own  convenience  merely,  without 
any  invitation,  either  express  or  which  may  fairly  be  implied  from 
the  preparation  and  adaptation  of  the  premises  for  the  purposes  for 
which  they  are  appropriated."  In  Marwedel  v.  Cook,  154  Mass.  235, 
236,  28  N.  E.  140,  we  find  this  language:  "The  general  duty  which 
the  defendants  owed  to  third  persons,  in  respect  to  the  passages  of  the 
building,  is  well  expressed  in  the  instructions  to  the  jury  at  the  trial : 
'If  the  defendants  leased  rooms  in  the  building  to  different  tenants, 
reserving  to  themselves  the  control  of  the  halls,  stairways,  and  eleva- 
tor, by  and  through  which  access  was  to  be  had  to  these  rooms,  and 
the  general  lighting  arrangements  of  those  passages,  then  the  defend- 
ants were  bound  to  take  reasonable  care  that  such  approaches  were 
safe  and  suitable  at  all  times,  and  for  all  persons  who  were  lawfully 
using  the  premises,  and  using  due  care,  so  far  as  they  ought  to  have 
reasonably  anticipated  such  use  as  involved  in  and  necessarily  arising 
out  of  the  purposes  and  business  for  which  said  rooms  were  leased.' ': 
In  Learoyd  v.  Godfrey,  138  Mass.  315,  323,  the  plaintiff,  a  police  of- 
ficer, was  expressly  invited  to  the  premises  by  a  daughter  of  the  occu- 
pant to  arrest  an  intoxicated  person  who  was  making  disturbance  in 
the  house.  In  Curtis  v.  Kiley,  153  Mass.  123,  26  N.  E.  421,  no  ques- 
tion was  considered  or  clearly  raised  about  the  invitation  to  the  plain- 
tiff. In  Davis  v.  Central  Congregational  Society,  129  Mass.  367,  37 
Am.  Rep.  368,  the  plaintiff  went  to  the  defendant's  church  under  an 
express  invitation  authorized  by  the  defendant,  and  the  'object  of  her 
visit  was  among  those  contemplated  by  the  defendant  when  the  build- 
ing was  erected.  The  language  used  in  the  cases  in  this  common- 
wealth and  in  other  states  indicates  that  the  rule  in  regard  to  the  ex- 
tent of  the  invitation  implied  from  the  preparation  of  property  for 
use  in  business  is  the  same  here  as  laid  down  in  the  cases  above  cited 
from  the  courts  of  New  York  and  of  England.  Sweeny  v.  Old  Colony 
&  Newport  Railroad,  10  Allen,  368,  87  Am.  Dec.  644 ;  Elliott  v.  Pray, 
10  Allen,  378,  87  Am.  Dec.  653 ;  Carleton  v.  Franconia  Iron  &  Steel 
Co.,  99  Mass.  216;  Metcalfe  v.  Cunard  Steamship  Co.,  147  Mass.  66, 
16  N.  E.  701 ;  Heinlein  v.  Boston  &  Providence  Railroad,  147  Mass. 
136,  16  N.  E.  698,  9  Am.  St.  Rep.  676;  Reardon  v.  Thompson,  149 
Mass.  267,  21  N.  E.  369;  Gordon  v.  Cummings,  152  Mass.  513,  25  N. 
E.  978,  9  L.  R.  A.  640,  23  Am.  St.  Rep.  846;  Curtis  v.  Kiley,  153 


308  NEGLIGENCE 

Mass.  123,  26  N.  E.  421 ;  Stevens  v.  Nichols,  155  Mass.  472,  29  N.  E. 
1150,  15  L.  R.  A.  459;  Campbell  v.  Portland  Sugar  Co.,  62  Me.  552, 
16  Am.  Rep.  503;  Parker  v.  Portland  Publishing  Co.,  69  Me.  173,  31 
Am.  Rep.  262. 

In  Low  v.  Grand  Trunk  Railway,  72  Me.  313,  24  Am.  Rep.  331,  it 
was  held  that  the  owner  of  a  wharf  was  liable  to  a  customhouse  officer, 
who  was  upon  it  in  the  performance  of  his  duty  to  prevent  smuggling 
in  the  nighttime,  for  an  injury  resulting  from  a  defective  condition 
of  the  wharf.  The  officer  was  there  to  prevent  -unlawful  conduct  in 
connection  with  the  business  carried  on  at  the  wharf  with  the  consent 
of  the  owner,  and  the  owner  might  fairly  be  supposed  to  anticipate 
and  desire,  and  impliedly  to  invite,  his  presence  there  to  protect  the 
defendant's  property  from  those  who  would  unlawfully  use  it.  Nei- 
ther decision  nor  the  cases  cited  in  the  opinion,  when  carefully  ex- 
amined, will  be  found  to  give  any  countenance  to  the  view  that  one 
who  visits  a  building  for  a  purpose  not  connected  with  the  use  for 
which  the  building  was  fitted,  or  to  which  it  is  put,  is  impliedly  in- 
vited to  come  there.  *  *  * 

On  the  facts  of  the  case  before  us,  we  are  of  opinion  that  the 
plaintiff  was  a  mere  licensee  in  the  defendant's  building,  and  that  the 
rulings  at  the  trial  were  correct. 

Exceptions  overruled. 


3.  To 


INDERMAUR  v.  DAMES. 

.(Court  of  Common  Pleas,  Hilary  Term,  1866.     L.  R.  1  C.  P.  274.    In  the 
Exchequer  Chamber,  Hilary  Term,  1867.     L.  R.  2  C.  P.  311.) 

The  judgment  of  the  Court  [of  Common  Pleas]  was  delivered  by 

WILLES,  J.5  This  was  an  action  to  recover  damages  for  hurt  sus- 
tained by  the  plaintiff's  falling  down  a  shaft  at  the  defendant's  place 
of  business,  through  the  actionable  negligence,  as  it  was  alleged,  of  the 
defendant  and  his  servants. 

At  the  trial  before  the  Lord  Chief  Justice  at  the  sittings  here  after 
Michaelmas  Term,  the  plaintiff. had  a  verdict  for  £400  damages,  sub- 
ject to  leave  reserved. 

A  rule  was  obtained  by  the  defendant  in  last  term  to  enter  a  nonsuit, 
or  to  arrest  the  judgment,  or  for  a  new  trial  because  of  the  verdict  be- 
ing against  the  evidence.  The  rule  was  argued  during  the  last  term, 
before  Erie,  C.  J.,  Keating  and  Montague  Smith,  JJ.,  and  myself,  when 

*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  106. 

5  The  statement  of  facts  and  part  of  the  opinions  of  Willes,  J.,  and  Kelly, 
C.  B.,  are  omitted. 


DUTY   OF  OCCUPANT   OF  LAND  309 

we  took  time  to  consider.  We  are  now  of  opinion  that  the  rule  ought 
to  be  discharged. 

It  appears  that  the  defendant  was  a  sugar  refiner,  at  whose  place  of 
business  there  was  a  shaft  four  feet  three  inches  square,  and  twenty- 
nine  feet  three  inches  deep,  used  for  moving  sugar.  The  shaft  was  nec- 
essary, usual,  and  proper  in  the  way  of  the  defendant's  business. 
Whilst  it  was  in  use,  it  was  necessary  and  proper  that  it  should  be 
open  and  unfenced.  When  it  was  not  in  use,  it  was  sometimes  neces- 
sary, with  reference  to  ventilation,  that  it  should  be  open.  It  was  not 
necessary  that  it  should,  when' not  in  use,  be  unfenced;  and  it  might 
then  without  injury  to  the  business  have  been  fenced  by  a  rail.  Wheth- 
er it  was  usual  to  fence  similar  shafts  when  not  in  use  did  not  dis- 
tinctly appear;  nor  is  it  very  material,  because  such  protection  was 
unquestionably  proper,  in'  the  sense  of  reasonable,  with  reference  to 
the  safety  of  persons  having  a  right  to  move  about  upon  the  floor 
where  the  shaft  in  fact  was,  because  in  its  nature  it  formed  a  pitfall 
there.  At  the  time  of  the  accident  it  was  not  in  use,  and  it  was  open 
and  unfenced. 

The  plaintiff  was  a  journeyman  gas-fitter  in  the  employ  of  a  pat- 
entee who  had  supplied  the  defendant  with  his  patent  gas  regulator, 
to  be  paid  for  upon  the  terms  that  it  effected  a  certain  saving;  and, 
for  the  purpose  of  ascertaining  whether  such  a  saving  had  been  ef- 
fected, the  plaintiff's  employer  was  required  to  test  the  action  of  the 
regulator.  He  accordingly  sent  the  plaintiff  to  the  defendant's  place 
of  business  for  that  purpose;  and,  whilst  the  plaintiff  was  engaged 
upon  the  floor  where  the  shaft  was,  he  (under  circumstances  as  to 
which  the  evidence  was  conflicting,  but)  accidentally,  and,  as  the  jury 
found,  without  any  fault  or  negligence  on  his  part,  fell  down  the  shaft, 
and  was  seriously  hurt. 

It  was  argued  that,  as  the  defendant  had  objected  to  the  plaintiff's 
working  at  the  place  upon  a  former  occasion,  he  (the  plaintiff)  could 
not  be  considered  as  having  been  in  the  place  with  the  defendant's 
leave  at  the  time  of  the  accident;  but  the  evidence  did  not  establish 
a  peremptory  or  absolute  objection  to  the  plaintiff's  being  employed, 
so  as  to  make  the  sending  of  him  upon  the  occasion  of  the  accident  any 
more  against  the  defendant's  will  than  the  sending  of  any  other  work- 
man: and  the  employment,  and  the  implied  authority  resulting  there- 
from to  test  the  apparatus,  were  not  of  a  character  involving  personal 
preference  (dilectus  personse),  so  as  to  make  it  necessary  that  the  pat- 
entee should  himself  attend.  It  was  not  suggested  that  the  work  was 
not  journeyman's  work. 

It  was  also  argued  that  the  plaintiff  was  at  best  in  the  condition 
of  a  bare  licensee  or  guest,  who,  it  was  urged,  is  only  entitled  to  use 
the  place  as  he  finds  it,  and  whose  complaint  may  be  said  to  wear  the 
color  of  ingratitude,  so  long  as  there  is  no  design  to  injure  him.  See 
Hounsell  v.  Smyth,  7  C.  B.  (N.  S.)  371. 


310  NEGLIGENCE 

We  think  this  argument  fails,  because  the  capacity  in  which  the 
plaintiff  was  there  was  that  of  a  person  on  lawful  business,  in  the 
course  of  fulfilling  a  contract  in  which  both  the  plaintiff  and  the 
defendant  had  an  interest,  and  not  upon  bare  permission.  No  sound 
distinction  was  suggested  between  the  case  of  the  servant  and  the 
case  of  the  employer,  if  the  latter  had  thought  proper  to  go  in  person ; 
nor  between  the  case  of  a  person  engaged  in  doing  the  work  for  the 
defendant  pursuant  to  his  employment  and  that  of  a  person  testing 
the  work  which  he  had  stipulated  with  the  defendant  to  be  paid  for  if 
it  stood  the  test,  whereby  impliedly  the  workman  was  to  be  allowed  an 
onstand  to  apply  that  test,  and  a  reasonable  opportunity  of  doing  so. 
Any  duty  to  enable  the  workman  to  do  the  work  in  safety  seems 
equally  to  exist  during  the  accessory  employment  of  testing :  and  any 
duty  to  provide  for  the  safety  of  the  master  workman  seems  equally 
owing  to  the  servant  workman  whom  he  may  lawfully  send  in  his 
place. 

It  is  observable  that  in  the  case  of  Southcote  v.  Stanley,  1  H.  &  N. 
247,  upon  which  much  reliance  was  properly  placed  for  the  defend- 
ant, Alderson,  B.,  drew  the  distinction  between  a  bare  licensee  and 
a  person  coming  on  business,  and  Bramwell,  B.,  between  active  neg- 
ligence in  respect  of  unusual  danger  known  to  the  host  and  riot  to 
the  guest,  and  a  bare  defect  of  construction  or  repair,  which  the 
host  was  only  negligent  in '  not  finding  out  or  anticipating  the  con- 
sequence of. 

There  is  a  considerable  resemblance,  though  not  a  strict  analogy, 
between  this  class  of  cases  and  those  founded  upon  the  rule  as  to 
voluntary  loans  and  gifts,  that  there  is  no  remedy  against  the  lender 
or  giver  for  damage  sustained  from  the  loan  or  gift,  except  in  case 
of  unusual  danger  known  to  and  concealed  by  the  lender  or  giver. 
Macarthy  v.  Younge,  6  H.  &  N.  329.  The  case  of  the  carboy  of 
vitriol 6  was  one  in  which  this  court  held  answerable  the  bailor  of  an 
unusually  dangerous  chattel,  the  quality  of  which  he  knew,  but  did  not 
tell  the  bailee,  who  did  not  know  it,  and  who,  as  a  proximate  conse- 
quence of  his  not  knowing,  and  without  any  fault  on  his  part,  suf- 
fered damage. 

The  cases  referred  to. as  to  the  liability  for  accidents  to  servants 
and  persons  employed  in  other  capacities  in  a  business  or  profession 
which  necessarily  and  obviously  exposes  them  to  danger,  as  in  Sey- 
mour v.  Maddox,  16  Q.  B.  326,  also  have  their  special  reasons.  The 
servant  or  other  person  so  employed  is  supposed  to  undertake  not 
only  all  the  ordinary  risks  of  the  employment  into  which  he  enters, 
but  also  all  extraordinary  risks  which  he  knows  of  and  thinks  proper 
to  incur,  including  those  caused  by  the  misconduct  of  his  fellow  serv- 
ants, not  however  including  those  which  can  be  traced  to  mere  breach 

o  Farrant  v.  Barnes  (1862)  11  O.  B.  (N.  S.)  553,  142  Reprint,  912,  132  R.  R. 
G67. 


DUTY   OF   OCCUPANT   OF  LAND  311 

of  duty  on  the  part  of  the  master.  In  the  case  of  a  statutory  duty 
to  fence,  even  the  knowledge  and  reluctant  submission  of  the  serv- 
ant who  has  sustained  an  injury,  are  held  to  be  only  elements  in  de- 
termining whether  there  has  been  contributory  negligence:  how  far 
this  is  the  law  between  master  and  servant,  where  there  is  danger 
known  to  the  servant*  and  no  statute  for  his  protection,  we  need 
not  now  consider,  because  the  plaintiff  in  this  case  was  not  a  serv- 
ant of  the  defendant,  but  the  servant  of  the  patentee.  The  question 
was  adverted  to,  but  not  decided,  in  Clarke  v.  Holmes,  7  H.  &  N. 
937. 

The  authorities  respecting  guests  and  other  bare  licensees,  and  those 
respecting  servants  and  others  who  consent  to  incur  a  risk,  being 
therefore  inapplicable,  we  are  to  consider  what  is  the  law  as  to  the 
duty  of  the  occupier  of  a  building  with  reference  to  persons  resort- 
ing thereto  in  the  course  of  business,  upon  his  invitation,  express  or 
implied.  The  common  case  is  that  of  a  customer  in  a  shop :  but  it 
is  obvious  that  this  is  only  one  of  a  class;  for,  whether  the  customer 
is  actually  chaffering  at  the  time,  or  actually  buys  or  not,  he  is,  ac- 
cording to  an  undoubted  course  of  authority  and  practice,  entitled 
to  the  exercise  of  reasonable  care  by  the  occupier  to  prevent  damage 
from  unusual  danger,  of  which  the  occupier  knows  or  ought  to  know, 
such  as  a  trapdoor  left  open,  unfenced,  and  unlighted.  Lancaster 
Canal  Company  v.  Parnaby,  1 1  Ad.  &  E.  223 ;  per  cur.  Chapman 
v.  Rothwell,  E.  B.  &  E.  168,  where  Southcote  v.  Stanley,  1  H.  &  N. 
247  (1856)  108  R.  R.  549,  was  cited,  and  the  Lord  Chief  Justice, 
then  Erie,  J.,  said:  "The  distinction  is  between  the  case  of  a  visitor 
(as  the  plaintiff  was  in  Southcote  v.  Stanley),  who  must  take  care 
of  himself,  and  a  customer,  who,  as  one  of  the  public,  is  invited 
for  the  purposes  of  business  carried  on  by  the  defendant."  This 
protection  does  not  depend  upon  the  fact  of  a  contract  being  entered 
into  in  the  way  of  the  shopkeeper's  business  during  the  stay  of  the 
customer,  but  upon  the  fact  that  the  customer  has  come  into  the  shop 
in  pursuance  of  a  tacit  invitation  given  by  the  shopkeeper,  with  a 
view  to  business  which  concerns  himself.  And,  if  a  customer  were, 
after  buying  goods,  to  go  back  to  the  shop  in  order  to  complain  of 
the  quality,  or  that  the  change  was  not  right,  he  would  be  just  as  much 
there  upon  business  which  concerned  the  shopkeeper,  and  as  much  en- 
titled to  protection  during  this  accessory  visit,  though  it  might  not 
be  for  the  shopkeeper's  benefit,  as  during  the  principal  visit,  which 
was.  And  if,  instead  of  going  himself,  the  customer  were  to  send 
his  servant,  the  servant  would  be  entitled  to  the  same  consideration  as 
the  master. 

The  class  to  which  the  customer  belongs  includes  persons  who  go 
not  as  mere  volunteers,  or  licensees,  or  guests,  or  servants,  or  per- 
sons whose  employment  is  such  that  danger  may  be  considered  as 


312  NEGLIGENCE 

bargained  for,  but  who  go  upon  business  which  concerns  the  occupier, 
and  upon  his  invitation,  express  or  implied. 

And,  with  respect  to  such  a  visitor  at  least,  we  consider  it  settled 
law  that  he,  using  reasonable  care  on  his  part  for  his  own  safety,  is 
entitled  to  expect  that  the  occupier  shall  on  his  part  use  reasonable 
care  to  prevent  damage  from  unusual  danger,  which  he  knows,  or 
ought  to  know;  and  that,  where  there  is  evidence  of  neglect,  the 
question  whether  such  reasonable  care  has  been  taken,  by  notice,  light- 
ing, guarding,  or  otherwise,  and  whether  there  was  contributory 
negligence  in  the  sufferer,  must  be  determined  by  a  jilry  as.  matter 
of  fact. 

In  the  case  of  Wilkinson  v.  Fairrie,  1  H.  &  C.  633,  relied  upon 
for  the  defendant,  the  distinction  was  pointed  out  between  ordinary 
accidents,  such  as  falling  down  stairs,  which  ought  to  be  imputed  to 
the  carelessness  or  misfortune  of  the  sufferer,  and  accidents  from 
unusual,  covert  danger,  such  as  that  of  falling  down  into  a  pit. 

It  was  ably  insisted  for  the  defendant  that  he  could  only  be  bound 
to  keep  his  place  of  business  in  the  same  condition  as  other  places  of 
business  of  the  like  kind,  according  to  the  best-known  mode  of  con- 
struction. And  this  argument  seems  conclusive  to  prove  that  there 
was  no  absolute  duty  to  prevent  danger,  but  only  a  duty  to  make  the 
place  as  little  dangerous  as  such  a  place  could  reasonably  be,  having 
regard  to  the  contrivances  necessarily  used  in  carrying  on  the  busi- 
ness.- But  we  think  the  argument  is  inapplicable  to  the  facts  of  this 
case :  First,  because  it  was  not  shown,  and  probably  could  not  be,  that 
there  was  any  usage  never  to  fence  shafts;  secondly,  because  it  was 
proved  that,  when  the  shaft  was  not  in  use,  a  fence  might  be  resorted 
to  without  inconvenience,  and  no  usage  could  establish,  that  what 
was  in  fact  unnecessarily  dangerous  was  in  law  reasonably  safe,  as 
against  persons  towards  whom  there  was  a  duty  to  be  careful. 

Having  fully  considered  the  notes  of  the  Lord  Chief  Justice,  we 
think  there  was  evidence  for  the  jury  that  the  plaintiff  was  in  the 
place  by  the  tacit  invitation  of  the  defendant,  upon  business  in  which 
he  was  concerned ;  that  there  was  by  reason  of  the  shaft  unusual  dan- 
ger, known  to  the  defendant;  and  that  the  plaintiff  sustained  damage 
by  reason  of  that  danger,  and  of  the  neglect  of  the  defendant  and  his 
servants  to  use  reasonably  sufficient  means  to  avert  or  warn  him  of  it ; 
and  we  cannot  say  that  the  proof  of  contributory  negligence  was  so 
clear  that  we  ought  on  this  ground  to  set  aside  the  verdict  of  the  jury. 

As  for  the  argument  that  the  plaintiff  contributed  to  the  accident 
by  not  following  his  guide,  the  answer  may  be  that  the  guide,  knowing 
the  place,  ought  rather  to  have  waited  for  him;  and  this  point,  as 
matter  of  fact,  is  set  at  rest  by  the  verdict. 

For  these  reasons,  we  think  there  was  evidence  of  a  cause  of  action 
in  respect  of  which  the  jury  were  properly  directed;  and,  as  every 
reservation  of  leave  to  enter  a  nonsuit  carried  with  it  an  implied  con- 


DUTY   OF  OCCUPANT  OF  LAND  313 

dition  that  the  court  may  amend,  if  necessary,  in  such  a  manner  as  tfc 
raise  the  real  question,  leave  ought  to  be  given  to  the  plaintiff,  in  the 
event  of  the  defendant  desiring  to  appeal  or  to  bring  a  writ  of  error, 
to  amend  the  declaration  by  stating  the  facts  as  proved — in  effect,  that 
the  defendant  was  the  occupier  of  and  carried  on  business  at  the 
place ;  that  there  was  a  shaft,  very  dangerous  to  persons  in  the  place, 
which  the  defendant  knew  and  the  plaintiff  did  not  know;  that  the 
plaintiff,  by  invitation  and  permission  of  the  defendant,  was  near  the 
shaft,  upon  business  of  the  defendant,  in  the  way  of  his  own  craft 
as  a  gas-fitter,  for  hire,  etc.,  stating  the  circumstances,  the  negligence, 
and  that  by  reason  thereof  the  plaintiff  was  injured.  The  details  of 
the  amendment  can,  if  necessary,  be  settled  at  chambers.  *  *  * 

Rule  discharged. 

Against  this  decision  of  the  Court  of  Common  Pleas,  the  defendant 
appealed. 

(In  the  Exchequer  Chamber.) 

KELLY,  C.  B.  *  *  *  The  question  has  been  raised  whether  the 
plaintiff  at  the  time  of  the  accident  and  under  the  special  circumstances 
of  the  case  was  more  than  a  mere  volunteer.  Let  us  see  what  the  case 
really  was.  The  work  had  been  done  on  Saturday,  and  at  the  con- 
clusion of  it  an  appointment  was  made  for  the  plaintiff's  employer  or 
some  other  workman  to  come  on  the  following  Tuesday  to  see  if  the 
work  was  in  proper  order,  and  all  the  parts  of  it  acting  rightly.  The 
plaintiff  by  his  master's  directions  went  for  that  purpose,  and  I  own 
I  do  not  see  any  distinction  between  the  case  of  a  workman  going  upon 
the  premises  to  perform  his  employer's  contract,  and  that  of  his  going 
after  the  contract  is  completed,  but  for  a  purpose  incidental  to  the 
contract,  and  so  intimately  connected  with  it,  that  few  contracts  are 
completed  without  a  similar  act  being  done.  The  plaintiff  went  under 
circumstances  such  as  those  last  mentioned,  and  he  comes,  therefore, 
strictly  within  the  language  used  by  Willes,  J.,  "a  person  on  lawful 
business  in  the  course  of  fulfilling  a  contract,  in  which  both  the  plain- 
tiff and  defendant  have  an  interest." 

What  then  is  the  duty  imposed  by  law  on  the  owner  of  these  prem- 
ises ?  They  were  used  for  the  purpose  of  a  sugar  refinery,  and  it  may 
very  likely  be  true  that  such  premises  usually  have  holes  in  the  floors 
of  the  different  stories,  and  that  they  are  left  without  any  fence  or 
safeguard  during  the  day  while  the  workpeople,  who  it  may  well  be 
supposed  are  acquainted  with  the  dangerous  character  of  the  premises, 
are  about ;  but  if  a  person  occupying  such  premises  enters  into  a  con- 
tract, in  the  fulfillment  of  which  workmen  must  come  on  the  premises 
who  probably  do  not  know  what  is  usual  in  such  places,  and  are  un- 
acquainted with  the  danger  they  are  likely  to  incur,  is  he  not  bound 
either  to  put  up  some  fence  or  safeguard  about  the  hole,  or,  if  he 
does  not,  to  give  such  workmen  a  reasonable  notice  that  they  must  take 


314  NEGLIGENCE 

care  and  avoid  the  danger?  I  think  the  law  does  impose  such  an 
obligation  on  him.  That  view  was  taken  in  the  judgment  in  the  court 
below,  where  it  is  said:  "With  respect  to  such  a  visitor  at  least,  we 
consider  it  settled  law  that  he,  using  reasonable  care  on  his  part  for  his 
own  safety,  is  entitled  to  expect  that  the  occupier  shall  on  his  part 
use  reasonable  care  to  prevent  damage  from  unusual  danger  which 
he  knows  or  ought  to  know ;  and  that,  when  there  is  evidence  of 
neglect,  the  question  whether  such  reasonable  care  has  been  taken  by 
notice,  lighting,  guarding,  or  otherwise,  and  whether  there  was  such 
contributory  negligence  in  the  sufferer,  must  be  determined  by  a  jury 
as  a  matter  of  fact." 

It  was  so  determined  in  this  case,  and  though  I  am  far  from  saying 
that  there  was  not  evidence  that  the  plaintiff  largely  contributed  to 
the  accident  by  his  own  negligence,  yet  that  was  for  the  jury ;  and  I 
think  there  was  clearly  some  evidence  for  them  that  the  defendant 
had  not  used  reasonable  precautions,  and  that  the  judge  therefore 
would  have  been  wrong  if  he  had  nonsuited  the  plaintiff. 

CHANNELL,  B.,  BL.ACKBURN,  J.,  MEL.LOR,  J.,  and  PIGOTT,  B.,  con- 
curred. 

Judgment  affirmed.7 


4.  To  OCCUPANT  OF  ADJOINING  PREMISES  8 
MARSHALL  v.  WELWOOD. 

(Supreme  Court  of  New  Jersey,  1876.    38  N.  J.  Law,  339,  20  Am.  Rep.  394.) 

BEASLEY,  C.  J.  The  judge,  at  the  trial  of  this  cause,  charged,  among 
other  matters,  that  as  the  evidence  incontestably  showed  that  one  of 
the  defendants,  Welwood,  was  the  owner  of  the  boiler  which  caused 
the  damage,  he  was  liable  in  the  action,  unless  it  appeared  that  the 
same  was  not  being  run  by  him,  or  his  agent,  at  the  time  of  the  ex- 
plosion. The  proposition  propounded  was  that  a  person  is  responsible 
for  the  immediate  consequences  of  the  bursting  of  a  steam  boiler,  in 
use  by  him,  irrespective  of  any  question  as  to  negligence  or  want  of 
skill  on  his  part. 

This  view  of  the  law  is  in  accordance  with  the  principles  maintained 
with  great  learning  and  force  of  reasoning  in  some  of  the  late  English 
decisions.  In  this  class  the  leading  case  is  that  of  Fletcher  v.  Rylands, 
L.  R.  1  Exch.  265,  which  was  a  suit  on  account  of  damage  done  by 
water  escaping  onto  the  premises  of  the  plaintiff  from  a  reservoir 
which  the  defendant  had  constructed  with  due  care  and  skill  on  his 

7  Compare  Griffen  v.  Manice,  infra,  p.  336. 

8  For  discussion  of  principles,  see  Chapin  on  Torts,  §  106. 


DUTY   OF   OCCUPANT   OF  LAND  315 

own  land.  The  judgment  was  put  on  a  general  ground,  for  the  court 
said :  "We  think  the  true  rule  of  law  is  that  the  person  who,  for  his 
own  purposes,  brings  on  his  lands  and  collects  and  keeps  there  any- 
thing likely  to  do  mischief  if  it  escapes,  must  keep  it  in  at  his  peril, 
and,  if  he  does  not  do  so,  is  prima  facie  answerable  for  all  the  damage 
which  is  the  natural  consequence  of  its  escape." 

This  result  was  deemed  just,  and  was  sought  to  be  vindicated  on  the 
theory  that  it  is  but  reasonable  that  a  person  who  has  brought  some- 
thing on  his  own  property  which  was  not  naturally  there,  harmless 
to  others,  so  long  as  it  is  confined  to  his  own  property,  but  which 
he  knows  to  be  mischievous  if  it  gets  on  his  neighbor's,  should  be 
obliged  to  make  good  the  damage  which  ensues,  if  he  does  not  succeed, 
in  confining  it  to  his  own  property.  This  principle  would  evidently 
apply  to,  and  rule,  the  present  case;  for  water  is  no  more  likely  to 
escape  from  a  reservoir  and  do  damage  than  steam  is  from  a  boiler ; 
and,  therefore,  if  he  who  collects  the  former  force  upon  his  property, 
and  seeks,  with  care  and  skill,  to  keep  it  there,  is  answerable  for  his 
want  of  success,  so  is  he  who,  under  similar  conditions,  endeavors  to 
deal  with  the  latter.  There  is  nothing  unlawful  in  introducing  water 
into  a  properly  constructed  reservoir  on  a  person's  own  land,  nor  in 
raising  steam  in  a  boiler  of  proper  quality;  neither  act,  when  per- 
formed, is  a  nuisance  per  se;  and  the  inquiry  consequently  is  whether 
in  the  doing  of  such  lawful  act  the  party  who  does  it  is  an  insurer 
against  all  flaws  in  the  apparatus  employed,  no  matter  how  secret,  or 
unascertainable  by  the  use  of  every  reasonable  test,  such  flaws  may 
be.  This  English  adjudication  takes  the  affirmative  side  of  the  ques- 
tion, conceding,  however,  that  the  subject  is  not  controlled  by  an  ex- 
press decision,  and  that  it  is  to  be  investigated  with  reference  to  the 
general  grounds  of  jurisprudence.  I  have  said  the  doctrine  involved 
has  been  learnedly  treated,  and  the  decision  is  of  great  weight,  and 
yet  its  reasoning  has  failed  to  convince  me  of  the  correctness  of  the 
result  to  which  it  leads,  and  such  result  is  clearly  opposed  to  the  course 
which  judicial  opinion  has  taken  in  this  country.  The  fallacy  in  the 
process  of  argument  by  which  judgment  is  reached  in  this  case  of 
Fletcher  v.  Rylands,  appears  to  me  to  consist  in  this :  That  the  rule 
mainly  applicable  to  a  class  of  cases  which,  I  think,  should  be  re- 
garded as,  in  a  great  degree,  exceptional,  is  amplified  and  extended 
into  a  general,  if  not  universal,  principle.  The  principal  instance 
upon  which  reliance  is  placed  is  the  well-known  obligation  of  the 
owner  of  cattle  to  prevent  them  from  escaping  from  his  land  and 
doing  mischief.  The  law  as  to  this  point  is  perfectly  settled,  and  has 
been  settled  from  the  earliest  times,  and  is  to  the  effect  that  the 
owner  must  take  charge  of  his  cattle  at  his  peril,  and  if  they  evade 
his  custody  he  is  in  some  measure  responsible  for  the  consequences. 

This  is  the  doctrine  of  the  Year  Books,  but  I  do  not  find  that  it  is 
grounded  in  any  theoretical  principle,  making  a  man  answerable  for 


316  NEGLIGENCE 

his  acts  or  omissions,  without  regard  to  his  culpability.  That  in  this 
particular  case  of  escaping  cattle  so  stringent  an  obligation  upon  the 
owner  should  grow  up  was  not  unnatural.  That  the  beasts  of  the 
landowner  should  be  successfully  restrained  was  a  condition  of  con- 
siderable importance  to  the  unmolested  enjoyment  of  property,  and 
the  rights  to  plead  that  the  escape  had  occurred  by  inevitable  accident 
would  have  seriously  impaired,  if  it  did  not  entirely  frustrate,  the 
process  of  distress  damage  feasant.  Custom  has  had  much  to  do  in 
giving  shape  to  the  law,  and  what  is  highly  convenient  readily  runs  into 
usage,  and  is  accepted  as  a  rule.  It  would  but  rarely  occur  that  cattle 
would  escape  from  a  vigilant  owner,  and  in  this  instance  such  rare 
exceptions  seem  to  have  passed  unnoticed,  for  there  appears  to  be  no 
example  of  the  point  having  been  presented  for  judicial  consideration ; 
for  the  conclusion  of  the  liability  of  the  unnegligent  owner  rests  in 
dicta,  and  not  in  express  decision.  But,  waiving  this,  there  is  a  con- 
sideration which  seems  to  me  to  show  that  this  obligation  which  is  put 
upon  the  owner  of  errant  cattle  should  not  be  taken  to  be  a  principle 
applicable,  in  a  general  way,  to  the  use  or  ownership  of  property, 
which  is  this:  That  the  owner  of  such  cattle  is,  after  all,  liable  only 
sub  modo  for  the  injury  done  by  them,  that  is,  he  is  responsible,  with 
regard  to  tame  beasts  who  have  no  exceptionally  vicious  disposition 
so  far  as  is  known,  for  the  grass  they  eat  and  such  like  injuries,  but 
not  for  the  hurt  they  may  inflict  on  the  person  of  others — a  restriction 
on  liability  which  is  hardly  consistent  with  the  notion  that  this  class 
of  cases  proceeds  from  a  principle  so  wide  as  to  embrace  all  persons 
whose  lawful  acts  produce,  without  fault  in  them,  and  in  an  indirect 
manner,  ill  results  which  disastrously  affect  innocent  persons.  If  the 
principle  ruling  these  cases  was  so  broad  as  this,  conformity  to  it  would 
require  that  the  person  being  the  cause  of  the  mischief  should  stand 
as  an  indemnifier  against  the  whole  of  the  damage.  It  appears  to  me, 
therefore,  that  this  rule  which  applies  to  damage  done  by  straying 
cattle  was  carried  beyond  its  true  bounds,  when  it  was  appealed  to 
as  proof  that  a  person  in  law  is  answerable  for  the  natural  conse- 
quences of  his  acts,  such  acts  being  lawful  in  themselves,  and  having 
been  done  with  proper  care  and  skill. 

The  only  other  cases  which  were  referred  to  in  support  of  the  judg- 
ment under  consideration  were  those  of  a  man  who  was  sued  for  not 
keeping  the  wall  of  his  privy  in  repair  to  the  detriment  of  his  neighbor, 
being  the  case  of  Tenant  v.  Golding,  1  Salk.  21,  and  several  actions 
which  it  is  said  had  been  brought  against  the  owner  of  some  alkali 
works  for  damages  alleged  to  have  been  caused  by  the  chlorine  fumes 
escaping  from  their  works,  which  works,  the  case  showed,  had  been 
erected  upon  the  best  scientific  principles.  But  I  am  compelled  to 
think  that  these  cases  are  but  a  slender  basis  for  the  large  structure 
put  upon  it.  The  case  of  Tenant  v.  Golding  presented  merely  the 
question  whether  a  landowner  is  bound  in  favor  of  his  neighbor  to 


DUTY   OF   OCCUPANT   OF  LAND  317 

keep  the  wall  of  his  privy  in  repair,  and  the  court  held  that  he  was, 
and  that  he  was  responsible  if,  for  want  of  such  reparation,  the  filth 
escaped  on  the  adjoining  land.  No  question  was  mooted  as  to  his 
liability  in  case  the  privy  had  been  constructed  with  care  and  skill 
with  a  view  to  prevent  the  escape  of  its  contents,  and  had  been  kept 
in  a  state  of  repair.  Not  to  repair  a  receptacle  of  this  kind  when  it 
was  in  want  of  repairs  was,  in  itself,  a  prima  facie  case  of  negligence, 
and  it  seems  to  me  that  all  the  court  decided  was  to  hold  so. 

But  this  consideration  is  also  to  be  noticed,  both  with  respect  to 
this  last  case,  and  that  of  the  injurious  fumes  from  the  alkali  works, 
that  in  truth  they  stand  somewhat  by  themselves,  and  having  this 
peculiarity:  That  the  things  in  their  nature  partake  largely  of  the 
character  of  nuisances.  Take  the  alkali  works  as  an  example.  Placed 
in  a  town,  under  ordinary  circumstances,  they  would  be  a  nuisance. 
When  the  attempt  is  made  by  scientific  methods  to  prevent  the  escape 
of  the  fumes,  it  is  an  attempt  to  legalize  that  which  is  illegal,  and  the 
consequence  is,  it  may  well  be  held,  that,  failing  in  the  attempt,  the 
nuisance  remains. 

I  cannot  agree  that,  from  these  indications,  the  broad  doctrine  is 
to  be  drawn  that  a  man  in  law  is  an  insurer  that  the  acts  which  he 
does,  such  acts  being  lawful  and  done  with  care,  shall  not  injuriously 
affect  others.  The  decisions  cited  are  not  so  much  examples  of  legal 
maxims  as  of  exceptions  to  such  maxims;  for  they  stand  opposed 
and  in  contrast  to  principles  which  it  seems  to  me  must  be  considered 
much  more  general  in  their  operation  and  elementary  in  their  nature. 

The  common  rule,  quite  institutional  in  its  character,  is  that  in 
order  to  sustain  an  action  for  a  tort,  the  damage  complained  of  must 
have  come  from  a  wrongful  act.  Mr.  Addison,  in  his  work  on  Torts, 
vol.  1,  p.  3,  very  correctly  states  this  rule.  He  says:  "A  man  may, 
however,  sustain  grievous  damages  at  the  hands  of  another,  and  yet 
if  it  be  the  result  of  the  inevitable  accident,  or  a  lawful  act,  done 
in  a  lawful  manner,  without  any  carelessness  or  negligence,  there  'is 
no  legal  injury,  and  no  tort  giving  rise  to  an  action  for  damages." 
Among  other  examples,  he  refers  to  an  act  of  force,  done  in  necessary 
self-defense,  causing  injury  to  an  innocent  bystander,  which  he  char- 
acterizes as  damnum  sine  injuria — "for  no  man  does  wrong  or  con- 
tracts guilt  in  defending  himself  against  an  aggressor."  Other  in- 
stances of  a  like  kind  are  noted,  such  as  the  lawful  obstruction  of  the 
view  from  the  windows  of  dwelling  houses;  or  the  turning  aside, 
to  the  detriment  of  another,  the  current  of  the  sea  or  river,  by  means 
of  walls  or  dikes.  Many  illustrations  of  the  same  bearing  are  to  be 
found  scattered  through  the  books  of  reports.  Thus  Dyer,  25b,  says : 
"That  if  a  man  have  a  dog  which  has  killed  sheep,  the  master  of  the 
dog  being  ignorant  of  such  quality  and  property  of  the  dog,  the  master 
shall  not  be  punished  for  that  killing."  This  case  belongs  to  a  nu- 
merous, well-known  class  where  animals  which  are  usually  harmless 


318  NEGLIGENCE 

do  damage,  the  decisions  being  that,  under  such  conditions,  the  owners 
of  the  animal  are  not  responsible.  'Akin  to  these  in  principle  are  cases 
of  injuries  done  to  innocent  persons  by  horses  in  the  charge  of  their 
owners,  becoming  ungovernable  by  reason  of  unexpected  causes ;  or 
where  a  person  in  a  dock  was  struck  by  the  falling  of  a  bale  of  cotton 
which  the  defendant's  servants  were  lowering  (Scott  v.  London  Dock 
Co.,  3  H.  &  C.  596) ;  or  in  cases  of  collision,  either  on  land  or  sea 
(Hammack  v.  White,  11  C.  B.  [N.  S.]  588). 

It  is  true  that  these  cases  of  injury  done  to  personal  property,  or  to 
persons,  are,  in  the  case  of  Fletcher  v.  Rylands,  sought  to  be  distin- 
guished from  other  damages,  on  the  ground  that  they  are  done  in  the 
course  of  traffic  on  the  highways,  whether  by  land  or  sea,  which  can- 
not be  conducted  without  exposing  those  whose  persons  or  property 
are  near  it  to  some  inevitable  risk.  But  this  explanation  is  not  suffi- 
ciently comprehensive,  for,  if  a  frightened  horse  should,  in  his  flight, 
break  into  an  inclosure,  no  matter  how  far  removed  from  the  high- 
way, the  owner  would  not  be  answerable  for  the  damage  done.  Nor  is 
the  reason  upon  which  it  rests  satisfactory,  for,  if  traffic  cannot  be 
carried  on  without  some  risk,  why  can  it  not  be  said  with  the  same 
truth  that  the  other  affairs  of  life,  though  they  be  transacted  away 
from  the  highways,  cannot  be  carried  on  without  some  risk;  and 
if  such  risk  is,  in  the  one  case,  to  be  borne  by  innocent  persons,  why 
not  in  the  other?  Business  done  upon  private  property  may  be  a  part 
of  traffic  as  well  as  that  done  by  the  means  of  the  highway,  and  no  rea- 
son is  perceived  why  the  same  favor  is  not  to  be  extended  to  it  in 
both  situations.  But,  besides  this,  the  reason  thus  assigned  for  the 
immunity  of  him  who  is  the  unwilling  producer  of  the  damage  has  not 
been  the  ground  on  which  the  decisions  illustrative  of  the  rule  have 
been  put;  that  ground  has  been  that  the  person  sought  to  be  charged 
had  not  done  any  unlawful  act.  Everywhere,  in  all  the  branches  of 
the  law,  the  general  principle  that  blame  must  be  imputable  as  a 
ground  of  responsibility  for  damages  proceeding  from  a  lawful  act 
is  appar'ent.  A  passenger  is  injured  by  the  breaking  of  an  axle  of  a 
public  conveyance;  the  carrier  is  not  liable,  unless  negligence  can  be 
shown.  A  man's  guest  is  hurt  by  the  falling  of  a  chandelier;  a  suit 
will  not  lie  against  the  host  without  proof  that  he  knew,  or  ought  to 
have  known,  of  the  existence  of  the  danger.  If  the  steam  engine 
which  did  the  mischief  in  the  present  case  had  been  in  use  in  driving 
a  train  of  cars  on  a  railroad,  and  had,  in  that  situation,  exploded  and 
had  inflicted  injuries  on  travelers  or  bystanders,  it  could  not  have 
been  pretended  that  such  damage  was  actionable,  in  the  absence  of 
the  element  of  negligence  or  unskillfulness.  By  changing  the  place  of 
the  accident  to  private  property,  I  cannot  agree  that  a  different  rule 
obtains. 

It  seems  to  me,  therefore,  that  in  this  case  it  was  necessary  to  sub- 
mit the  matter,  as  a  question  of  fact  for  the  jury,  whether  the  occur- 


DUTY   OF   OCCUPANT   OF  LAND  319 

rence  doing  the  damage  complained  of  was  the  product  of  pure  accident 
or  the  result  of  want  of  care  or  skill  on  the  part  of  the  defendant  or 
his  agents. 

This  view  of  the  subject  is  taken  in  the  American  decisions.  A  case 
in  all  respects  in  point  is  that  of  Losee  v.  Buchanan,  51  N.  Y.  476,  10 
Am.  Rep.  623.  The  facts  were  essentially  the  same  with  those  of  the 
principal  case.  It  was  an  action  growing  out  of  the  explosion  of  a 
steam  boiler  upon  private  property,  and  the  ruling  was  that  such  action 
co*uld  not  be  sustained  without  proof  of  fault  or  negligence.  In  that 
report  the  line  of  cases  is  so  fully  set  out  that  it  is  unnecessary  here 
to  repeat  them. 

The  rule  should  be  absolute. 


AINSWORTH  v.  LAKIN. 

(Supreme  Judicial  Court  of  Massachusetts,  1902.     180  Mass.  397,  62  N.  E.  746, 
57  L.  R.  A.  132,  91  Am.  St  Rep.  314.) 

Action  by  one  Ainsworth  against  one  Lakin  for  damages  to  a  stock 
of  goods  in  a  building  which  was  crushed  by  the  fall  of  the  walls  of 
an  adjoining  building,  which  had  been  partially  destroyed  by  fire,  and 
which  had  been  left  standing  from  the  time  of  the  fire  on  March  llth 
to  March  27th,  which  was  the  date  of  the  injury.  Judgment  in  favor 
of  the  plaintiff,  and  the  defendant  brings  exceptions. 

KNOWLTON,  J.  The  defendant's  intestate  was  the  owner  of  the  land 
and  of  the  first  two  stories  of  the  building  which  stood  upon  it  be- 
fore the  fire.  The  third  story  had  been  conveyed  by  the  former  own- 
ers to  Lewis,  Noble,  and  Laflin,  trustees,  to  hold  during  the  life  of  the 
building.  By  the  fire  the  life  of  the  building  was  destroyed,  and  the 
ownership  of  Lewis  and  others  in  the  third  story  was  terminated. 
Ainsworth  v.  Mt.  Moriah  Lodge,  172  Mass.  257,  52  N.  E.  81.  The 
defendant's  intestate  was  left  with  his  land  and  the  walls  and  some 
other  parts  of  the  first  and  second  stories  standing  upon  it,  and  with 
the  walls  of  the  third  story,  which  had  previously  belonged  to  the  trus- 
tees, resting  on  the  structure  below,  and  connected  with  it  as  a  part 
of  the  realty.  All  rights  of  other  persons  in  the  walls  of  the  third  story 
had  come  to  an  end.  As  owner  of  the  land  and  of  the  first  and  second 
stories  of  the  building,  he  was  owner  of  everything  upon  it  which  was 
a  part  of  the  real  estate.  Stockwell  v.  Hunter,  11  Mete.  448,  45  Am. 
Dec.  220;  Shawmut  Nat.  Bank  v.  City  of  Boston,  118  Mass.  125.  His 
position  in  reference  to  the  walls  of  the  third  story  was  like  that  of  a 
landlord  whose  tenant  leaves  the  leased  land  at  the  end  of  the  term 
with  structures  that  he  has  erected  upon  it,  which  have  become  a  part 
of  the  realty.  These  structures  which  are  abandoned  by  the  tenant 
immediately  become  the  property  of  the  landlord  to  whose  land  they 
are  affixed.  Burk  v.  Hollis,  98  Mass.  55 ;  Madigan  v.  McCarthy,  108 
Mass.  376,  11  Am.  Rep.  371 ;  Watriss  v.  Bank,  124  Mass.  571,  26  Am. 


320  NEGLIGENCE 

Rep.  694;  Mclver  v.  Estabrook,  134  Mass.  550.  As  owner  of  the 
land  and  the  structures  upon  it,  which  were  subject  to  the  power  of 
gravitation,  and  likely  to  do  injury  to  others  if  they  fell,  the  defend- 
ant's intestate  owed  certain  duties  to  adjacent  landowners.  His  duty 
immediately  after  the  fire  was  affected  by  the  fact  that  until  then  he 
had  had  no  ownership  or  control  of  the  upper  part  of  the  wall,  and  that 
the  condition  of  the  whole  had  been  greatly  changed  by  the  effect  of 
the  fire  and  the  destruction  of  the  connected  parts.  For  dangers  grow- 
ing out  of  changes  which  he  could  not  prevent  he  was  not  immediate- 
ly liable.  Gray  v.  Gaslight  Co.,  114  Mass.  149,  19  Am.  Rep.  324;  Ma- 
honey  v.  Libbey,  123  Mass.  20,  25  Am.  Rep.  6.  The  jury  were  there- 
fore rightly  instructed  that,  before  a  liability  could  grow  up  against 
the  defendant's  intestate  after  the  fire,  he  was  entitled  to  a  reasonable 
time  to  make  necessary  investigation  and  to  take  such  precautions  as 
were  required  to  prevent  the  wall  from  doing  harm. 

We  come  next  to  the  question,  "What  was  his  duty  and  what  was 
his  liability  after  the  lapse  of  such  a  reasonable  time?"  There  is  a 
class  of  cases  in  which  it  is  held  that  one  who,  for  his  own  purposes, 
brings  upon  his  land  noxious  substances  or  other  things  which  have  a 
tendency  to  escape  and  do  great  damage,  is  bound  at  his  peril  to  con- 
fine them  and  keep  them  on  his  own  premises.  This  rule  is  rightly  ap- 
plicable only  to  such  unusual  and  extraordinary  uses  of  property  in  ref- 
erence to  the  benefits  to  be  derived  from  the  use  and  the  dangers  or 
losses  to  which  others  are  exposed  as  should  not  be  permitted  except 
at  the  sole  risk  of  the  user.  The  standard  of  duty  established  by  the 
courts  in  these  cases  is  that  every  owner  shall  refrain  from  these  un- 
warrantable and  extremely  dangerous  uses  of  property  unless  he  pro- 
vides safeguards  whose  perfection  he  guaranties.  The  case  of  Rylands 
v.  Fletcher,  L.  R.  3  H.  L.  330;  Id.,  L.  R.  1  Exch.  267— rests  upon  this 
principle.  In  this  commonwealth  the  rule  has  been  applied  to  the  keep- 
ing of  manure  in  a  vault  very  near  the  well  and  the  cellar  of  a  dwell- 
ing house  of  an  adjacent  owner.  Ball  v.  Nye,  99  Mass.  582,  97  Am. 
Dec.  56.  See,  also,  Fitzpatrick  v.  Welch,  174  Mass.  486,  55  N.  E.  178, 
48  L.  R.  A.  278.  That  there  are  uses  of  property  not  forbidden  by 
law  to  which  this  doctrine  properly  may  be  applied  is  almost  universal- 
ly acknowledged.  This  rule  is  not  applicable  to  the  construction  and 
maintenance  of  the  walls  of  an  ordinary  building  near  the  land  of  an 
adjacent  owner.  In  Quinn  v.  Crimmings,  171  Mass.  255-258,  50  N. 
E.  624,  626,  42  L.  R.  A.  101,  68  Am.  St.  Rep.  420,  Mr.  Justice  Holmes 
shows  that  in  reference  to  the  danger  from  the  falling  of  a  structure 
erected  on  land  "the  decision  as  to  what  precautions  are  proper  natural- 
ly may  vary  with  the  nature  of  the  particular  structure."  He  says: 
"As  it  is  desirable  that  buildings  and  fences  should  be  put  up,  the  law 
of  this  commonwealth  does  not  throw  the  risk  of  that  act,  any  more 
than  of  other  necessary  conduct,  upon  the  actor,  or  make  every  owner 
of  a  structure  insure  against  all  that  may  happen,  however  little  to  be 
foreseen."  The  principle  applicable  to  the  erection  of  common  build* 


DUTY   OF   OCCUPANT   OF  LAND  321 

ings  whose  fall  might  do  damage  to  persons  or  property  on  the  adjacent 
premises  holds  owners  to  a  less  strict  duty.  This  principle  is  that, 
where  a  certain  lawful  use  of  property  will  bring  to  pass  wrongful  con- 
sequences from  the  condition  in  which  the  property  is  put,  if  these  are 
not  guarded  against,  an  owner  who  makes  such  a  use  is  bound  at  his 
peril  to  see  that  proper  care  is  taken  in  every  particular  to  prevent  the 
wrong.  Woodman  v.  Railroad  Co.,  149  Mass.  335,  21  N.  E.  482,  4 
L.  R.  A.  213,  14  Am.  St.  Rep.  427,  and  cases  cited;  Curtis  v.  Kitey, 
153  Mass.  123,  26  N.  E.  421 ;  Pye  v.  Faxon,  156  Mass.  471,  31  N.  E. 
640;  Harding  v.  City  of  Boston,  163  Mass.  14-19,  39  N.  E.  411,  and 
cases  cited;  Cabot  v.  Kingman,  166  Mass.  403-406,  44  N.  E.  344,  33 
L.  R.  A.  45 ;  Robbins  v.  Atkins,  168  Mass.  45,  46  N.  E.  425  ;  Thomp- 
son v.  Railway  Co.,  170  Mass.  577,  49  N.  E.  913,  40  L.  R.  A.  345,  64 
Am.  St.  Rep.  323;  Quinn  v.  Crimmings,  171  Mass.  255,  256,  50  N.  E. 
624,  42  L.  R.  A.  101,  68  Am.  St.  Rep.  420;  Boomer  v.  Wilbur,  176 
Mass.  482,  57  N.  E.  1004,  53  L.  R.  A.  172 ;  Sessengut  v.  Posey,  67  Ind. 
408,  33  Am.  Rep.  98;  City  of  Anderson  v.  East,  117  Ind.  126,  19  N. 
E.  726,  2  L.  R.  A.  712,  10  Am.  St.  Rep.  35 ;  City  of  Chicago  v.  Rob- 
bins,  2  Black,  418-428,  17  L.  Ed.  298;  Roman  v.  Stanley,  66  Pa.  464, 
5  Am.  Rep.  389 ;  Mayor,  etc.,  v.  Bailey,  2  Denio  (N.  Y.)  433 ;  Bower 
v.  Peate,  1  Q.  B.  Div.  321 ;  Tarry  v.  Ashton,  Id.  314;  Gray  v.  Pullen, 
5  Best  &  S.  970-981 ;  Dalton  v.  Angus,  6  App.  Cas.  740,  829.  The  duty 
which  the  law  imposes  upon  an  owner  of  real  estate  in  such  a  case  is  to 
make  the  conditions  safe  so  far  as  it  can  be  done  by  the  exercise  of 
ordinary  care  on  the  part  of  all  those  engaged  in  the  work.  He  is 
responsible  for  the  negligence  of  independent  contractors  as  well  as  for 
that  of  his  servants.  This  rule  is  applicable  to  every  one  who  builds 
an  ordinary  wall  which  is  liable  to  do  serious  injury  by  falling  out- 
side of  his  own  premises.  It  is  the  rule  on  which  the  decision  in  Gor- 
ham  v.  Gross,  125  Mass.  232,  28  Am.  Rep.  224,  rests,  and  the  case  is 
not  an  authority  for  any  liability  of  a  landowner  that  goes  beyond  this. 
See,  also,  Gray  v.  Harris,  107  Mass.  492,  9  Am.  Rep.  61 ;  Inhabitants 
of  Shrewsbury  v.  Smith,  12  Cush.  177.  The  uses  of  property  govern- 
ed by  this  rule  are  those  that  bring  new  conditions  which  involve  risks 
to  the  persons  or  property  of  others,  but  which,  are  ordinary  and  usual, 
and,  in  a  sense,  natural,  as  incident  to  the  ownership  of  the  land.  The 
rule  first  referred  to  applies  to  unusual  and  extraordinary  uses  which 
are  so  fraught  with  peril  to  others  that  the  owner  should  not  be  per- 
mitted to  adopt  them  for  his  own  purposes  without  absolutely  protect- 
ing his  neighbors  from  injury  or  loss  by  reason  of  the  use.  In  Eng- 
land this  rule,  which  was  laid  down  in  Rylands  v.  Fletcher,  supra,  in 
reference  to  a  reservoir  of  water,  has  since  been  held  to  be  inappli- 
cable where  the  collection  of  the  water  is  in  the  natural  and  ordinary 
use  of  the  land.  Fletcher  v.  Smith,  2  App.  Cas.  781.  See  Carstairs  v. 
Taylor,  L.  R.  6  Exch.  217.  So  far  as  we  know,  there  is  no  case  iv 
CHAP.CAS.TOBTS — 21 


322  NEGLIGENCE 

which  it  has  been  applied  to  the  erection  or  maintenance  of  the 'walls 
of  an  ordinary  building. 

The  construction  which  should  be  put  upon  the  judge's  charge  in  re- 
gard to  liability  for  standing  walls  is  by  no  means  certain.  Some 
broad  statements  in  it  might  seem  to  indicate  that  he  was  laying  down 
a  rule  applicable  to  the  construction  and  maintenance  of  walls  of  or- 
dinary buildings  so  situated  that  if  they  fall  they  will  be  likely  to  in- 
jure the  property  of  the  adjacent  owner.  If  this  were  the  true  mean- 
ing, the  instructions  would  be  wrong.  But,  taking  the  charge  in  its 
different  parts  in  connection  with  the  facts  stated  in  the  bill  of  ex- 
ceptions, we  think  it  was  intended  to  state  the  rule  applicable  to  the 
kind  of  wall  that  the  jury  were  considering,  and  not  to  the  walls  of 
buildings  generally.  As  was  decided  in  a  previous  suit  brought  by  this 
plaintiff,  the  life  of  the  building  had  been  destroyed  by  fire,  and  the 
walls  which  subsequently  fell  were  no  longer  used  in  supporting  a 
building.  Ainsworth  v.  Mt.  Moriah  Lodge,  172  Mass.  257,  52  N.  E. 
81.  Not  only  was  this  the  testimony  of  the  plaintiff's  witnesses,  but 
it  was  the  substance  of  the  evidence  introduced  by  the  defendant.  His 
experts  testified  that,  before  any  part  of  the  wall  could  safely  be  built 
upon,  the  third  story,  at  least,  would  have  to  be  taken  down.  This 
upper  part  of  the  wall  was  that  which  was  most  in  danger  of  falling, 
and  the  part  whose  fall  would  be  most  likely  to  do  damage.  To  main- 
tain it,  or  to  leave  it  standing  to  its  full  height,  could  serve  no  useful 
purpose.  Its  condition  in  reference  to  fitness  for  use  was  an  undis- 
puted fact  on  the  evidence.  Instead  of  being  a  part  of  a  building  adapt- 
ed to  occupation,  it  was  a  part  of  the  ruins  of  a  building.  To  maintain 
such  a  wall  after  the  expiration  of  a  reasonable  time  for  investigation 
and  for  its  removal  would  not  be  a  reasonable  and  proper  use  of  one's 
property.  It  was  the  duty  of  the  defendant  not  to  suffer  such  a  wall 
to  remain  on  his  land,  where  its  fall  would  injure  his  neighbor,  without 
using  such  care  in  the  maintenance  of  it  as  would  absolutely  prevent 
injuries,  except  from  causes  over  which  he  would  have  no  control, 
such  as  vis  major,  acts  of  public  enemies,  or  wrongful  acts  of  third 
persons  which  human  foresight  could  not  reasonably  be  expected  to  an- 
ticipate and  prevent.  This  was  the  rule  of  law  stated  by  the  judge  to 
the  jury.  With  this  construction  of  the  charge  we  think  that  the  jury 
were  rightly  directed  to  a  consideration  of  the  evidence  on  the  prin- 
cipal issue  of  fact.  *  *  *  9 

Exceptions  overruled. 

»  The  remainder  of  the  opinion  is  omitted. 


DUTY  OF  MAKER  OR  VENDOR  OF  CHATTEL          323 

II.  Duty  of  Maker  or  Vendor  of  Chattel 10 


MacPHERSON  v.  BUICK  MOTOR  Co. 
(Court  of  Appeals  of  New  York,  1916.     217  N.  Y.  382,  111  N.  E.  1050.) 

CARDOZO,  J.  The  defendant  is  a  manufacturer  of  automobiles.  It 
sold  an  automobile  to  a  retail  dealer.  The  retail  dealer  resold  to  the 
plaintiff.  While  the  plaintiff  was  in  the  car  it  suddenly  collapsed.  He 
was  thrown  out  and  injured.  One  of  the  wheels  was  made  of  defec- 
tive wood,  and  its  spokes  crumbled  into  fragments.  The  wheel  was 
not  made  by  the  defendant ;  it  was  bought  from  another  manufacturer. 
There  is  evidence,  however,  that  its  defects  could  have  been  discovered 
by  reasonable  inspection,  and  that  inspection  was  omitted.  There  is 
no  claim  that  the  defendant  knew  of  the  defect  and  willfully  concealed 
it.  The  case,  in  other  words,  is  not  brought  within  the  rule  of  Kuelling 
v.  Lean  Mfg.  Co,  183  N.  Y.  78,  75  N.  E.  1098,  2  L.  R.  A.  (N.  S.)  303, 
111  Am.  St.  Rep.  691,  5  Ann.  Cas.  124.  The  charge  is  one,  not  of 
fraud,  but  of  negligence.  The  question  to  be  determined  is  whether  the 
defendant  owed  a  duty  of  care  and  viligance  to  any  one  but  the  im- 
mediate purchaser. 

The  foundations  of  this  branch  of  the  law,  at  least  in  this  state,  were 
laid  in  Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455.  A  poison 
was  falsely  labeled.  The  sale  was  made  to  a  druggist,  who  in  turn  sold 
to  a  customer.  The  customer  recovered  damages  from  the  seller  who 
affixed  the  label.  "The  defendant's  negligence,"  it  was  said,  "put  hu- 
man life  in  imminent  danger."  A  poison,  falsely  labeled,  is  likely  to  in- 
jure any  one  who  gets  it.  Because  the  danger  is  to  be  foreseen,  there 
is  a  duty  to  avoid  the  injury.  Cases  were  cited  by  way  of  illustration 
in  which  manufacturers  were  not  subject  to  any  duty  irrespective  of 
contract.  The  distinction  was  said  to  be  that  their  conduct,  though 
negligent,  was  not  likely  to  result  in  injury  to  any  one  except  the  pur- 
chaser. We  are.  not  required  to  say  whether  the  chance  of  injury  was 
always  as  remote  as  the  distinction  assumes.  Some  of  the  illustrations 
might  be  rejected  to-day.  The  principle  of  the  distinction  is,  for  pres- 
ent purposes,  the  important  thing.  Thomas  v.  Winchester  became 
quickly  a  landmark  of  the  law.  In  the  application  of  its  principle  there 
may,  at  times,  have  been  uncertainty  or  even  error.  There  has  never 
in  this  state  been  doubt  or  disavowal  of  the  principle  itself.  The  chief 
cases  are  well  known,  yet  to  recall  some  of  them  will  be  helpful.  Loop 
v.  Litchfield,  42  N.  Y.  351,  1  Am.  Rep.  513,  is  the  earliest.  It  was  the 
case  of  a  defect  in  a  small  balance  wheel  used  on  a  circular  saw.  The 
manufacturer  pointed  out  the  defect  to  the  buyer,  who  wished  a  cheap 

10  For  discussion  of  principles,  see  Cliapin  on  Torts,  §  107. 


324  NEGLIGENCE 

article  and  was  ready  to  assume  the  risk.  The  risk  can  hardly  have 
been  an  imminent  one,  for  the  wheel  lasted  five  years  before  it  broke. 
In  the  meanwhile  the  buyer  had  made  a  lease  of  the  machinery.  It 
was  held  that  the  manufacturer  was  not  answerable  to  the  lessee.  Loop 
v.  Litchfield  was  followed  in  Losee  v.  Clute,  51  N.  Y.  494,  10  Am.  Rep. 
638,  the  case  of  the  explosion  of  a  steam  boiler.  That  decision  has 
been  criticized  (Thompson  on  Negligence,  233 ;  Shearman  &  Redfield 
on  Negligence  [6th  Ed.]  §  117);  but  it  must  be  confined  to  its  special 
facts.  It  was  put  upon  the  ground  that  the  risk  of  injury  was  too  re- 
mote. The  buyer  in  that  case  had  not  only  accepted  the  boiler,  but 
had  tested  it.  The  manufacturer  knew  that  his  own  test  was  not  the 
final  one.  The  finality  of  the  test  has  a  bearing  on  the  measure  of  dili- 
gence owing  to  persons  other  than  the  purchaser.  Beven,  Negligence 
(3d  Ed.)  pp.  50,  51,  54;  Wharton,  Negligence  (2d  Ed.)  §  134. 

These  early  cases  suggest  a  narrow  construction  of  the  rule.  Later 
cases,  however,  evince  a  more  liberal  spirit.  First  in  importance  is 
Devlin  v.  Smith,  89  N.  Y.  470,  42  Am.  Rep.  311.  The  defendant,  a 
contractor,  built  a  scaffold  for  a  painter.  The  painter's  servants  were 
injured.  The  contractor  was  held  liable.  He  knew  that  the  scaffold, 
if  improperly  constructed,  was  a  most  dangerous  trap.  He  knew  that 
it  was  to  be  used  by  the  workmen.  He  was  building  it  for  that  very 
purpose.  Building  it  for  their  use,  he  owed  them  a  duty,  irrespective 
of  his  contract  with  their  master,  to  build  it  with  care. 

From  Devlin  v.  Smith  w«  pass  over  intermediate  cases  and  turn  to 
the  latest  case  in  this  court  in  which  Thomas  v.  Winchester  was  fol- 
lowed. That  case  is  Statler  v.  Ray  Mfg.  Co.,  195  N.  Y.  478,  480, 
88  N.  E.  1063.  The  defendant  manufactured  a  large  coffee  urn.  It 
was  installed  in  a  restaurant.  When  heated,  the  urn  exploded  and  in- 
jured the  plaintiff.  We  held  that  the  manufacturer  was  liable.  We 
said  that  the  urn  "was  of  such  a  character  inherently  that,  when  ap- 
plied to  the  purposes  for  which  it  was  designed,  it  was  liable  to  become 
a  source  of  great  danger  to  many  people  if  not  carefully  and  properly 
constructed." 

It  may  be  that  Devlin  v.  Smith  and  Statler  v.  Ray  Mfg.  Co.  have  ex- 
tended the  rule  of  Thomas  v.  Winchester.  If  so,  this  court  is  commit- 
ted to  the  extension.  The  defendant  argues  that  things  imminently 
dangerous  to  life  are  poisons,  explosives,  deadly  weapons — things 
whose  normal  function  it  is  to  injure  or  destroy.  But  whatever  the 
rule  in  Thomas  v.  Winchester  may  once  have  been,  it  has  no  longer 
that  restricted  meaning.  A  scaffold  (Devlin  v.  Smith,  supra)  is  not  in- 
herently a  destructive  instrument.  It  becomes  destructive -only  if  im- 
perfectly constructed.  A  large  coffee  urn  (Statler  v.  Ray  Mfg.  Co., 
supra)  may  have  within  itself,  if  negligently  made,  the  potency  of  dan- 
ger, yet  no  'one  thinks  of  it  as  an  implement  whose  normal  function  is 
destruction.  What  is  true  of  the  coffee  urn  is  equally  true  of  bottles 
of  aerated  water.  Torgesen  v.  Schultz,  192  N.  Y.  156,  84  N.  E.  956, 
18  L.  R.  A.  (N.  S.)  726,  127  Am.  St.  Rep.  894.  We  have  mentioned 


DUTY  OF  MAKER  OB  VENDOR  OF  CHATTEL         325 

only  cases  in  this  court.  But  the  rule  has  received  a  like  extension 
in  our  courts  of  intermediate  appeal.  In  Burke  v.  Ireland,  26  App. 
Div.  487,  50  N.  Y.  Supp.  369,  in  an  opinion  by  Cullen,  J.,  it  was  ap- 
plied to  a  builder  who  constructed  a  defective  building;  in  Kahner  v. 
Otis  Elevator  Co.,  96  App.  Div.  169,  89  N.  Y.  Supp.  185,  to  the  manu- 
facturer of  an  elevator;  in  Davies  v.  Pelham  Hod  Elevating  Co.,  65 
Hun,  573,  20  N.  Y.  Supp.  523,  affirmed  in  this  court  without  opinion, 
146  N.  Y.  363,  41  N.  E.  88,  to  a  contractor  who  furnished  a  defective 
rope  with  knowledge  of  the  purpose  for  which  the  rope  was  to  be  used. 
We  are  not  required  at  this  time  either  to  approve  or  to  disapprove  the 
application  of  the  rule  that  was  made  in  these  cases.  It  is  enough  that 
they  help  to  characterize  the  trend  of  judicial  thought. 

Devlin  v.. Smith  was  decided  in  1882.  A  year  later  a  very  similar 
case  came  before  the  Court  of  Appeal  in  England  (Heaven  v.  Fender, 
11  Q.  B.  D.  503).  We  find  in  the  opinion  of  Brett,  M.  R.,  afterwards 
Lord  Esher,  the  same  conception  of  a  duty,  irrespective  of  contract, 
imposed  upon  the  manufacturer  by  the  law  itself : 

"Whenever  one  person  supplies  goods  or  machinery,  or  the  like,  for 
the  purpose  of  their  being  used  by  another  person  under  such  circum- 
stances that  every  one  of  ordinary  sense  would,  if  he  thought,  recog- 
nize at  once  that  unless  he  used  ordinary  care  and  skill  with  regard  to 
the  condition  of  the  thing  supplied,  or  the  mode  of  supplying  it,  there 
will  be  danger  of  injury  to  the  person  or  property  of  him  for  whose 
use  the  thing  is  supplied,  and  who  is  to  use  it,  a  duty  arises  to  use 
ordinary  care  and  skill  as  to  the  condition  or  manner  of  supplying  such 
thing," ' 

He  then  points  out  that  for  a  neglect  of  such  ordinary  care  or  skill 
whereby  injury  happens,  the  appropriate  remedy  is  an  action  for  neg- 
ligence. The  right  to  enforce  this  liability  is  not  to  be  confined  to  the 
immediate  buyer.  The  right,  he  says,  extends  to  the  persons  or  class 
of  persons  for  whose  use  the  thing  is  supplied.  It  is  enough  that  the 
goods  "would  in  all  probability  be  used  at  once  *  *  *  before  a  rea- 
sonable opportunity  for  discovering  any  defect  which  might  exist,"  and 
that  the  thing  supplied  is  of  such  a  nature  "that  a  neglect  of  ordinary 
care  or  skill  as  to  its  condition  or  the  manner  of  supplying  it  would 
probably  cause  danger  to  the  person  or  property  of  the  person  for 
whose  use  it  was  supplied,  and  who  was  about  to  use  it."  On  the  oth- 
er hand,  he  would  exclude  a  case  "in  which  the  goods  are  supplied  un- 
der circumstances  in  which  it  would  be  a  chance  by  whom  they  would 
be  used  or  whether  they  would  be  used  or  not,  or  whether  they  would 
be  used  before  there  would  probably  be  means  of  observing  any  de- 
fect," or  where  the  goods  are  of  such  a  nature  that  "a  want  of  care 
or  skill  as  to  their  condition  or  the  manner  of  supplying  them  would 
not  probably  produce  danger  of  injury  to  person  or  property."  What 
was  said  by  Lord  Esher  in  that  case  did  not  command  the  full  assent 
of  his  associates.  His  opinion  has  been  criticized  "as  requiring  every 
man  to  take  affirmative  precautions  to  protect  his  neighbors  as  well  as 


326  NEGLIGENCE 

to  refrain  from  injuring  them."  Bohlen,  Affirmative  Obligations  in 
the  Law  of  Torts,  44  Am.  Law  Reg.  (N.  S.)  341.  It  may  not  be  an  ac- 
curate exposition  of  the  law  of  England.  Perhaps  it  may  need  some 
qualification  even  in  our  own  state.  Like  most  attempts  at  compre- 
hensive definition,  it  may  involve  errors  of  inclusion  and  of  exclusion. 
But  its  tests  and  standards,  at  least  in  their  underlying  principles,  with 
whatever  qualification  may  be  called  for  as  they  are  applied  to  vary- 
ing conditions,  are  the  tests  and  standards  of  our  law. 

We  hold,  then,  that  the  principle  of  Thomas  v.  Winchester  is  not 
limited  to  poisons,  explosives,  and  things  of  like  nature,  to  things  which 
in  their  normal  operation  are  implements  of  destruction.  If  the  na- 
ture of  a  thing  is  such  that  it  is  reasonably  certain  to  place  life  and 
limb  in  peril  when  negligently  made,  it  is  then  a  thing  of  danger.  Its 
nature  gives  warning  of  the  consequences  to  be  expected.  If  to  the 
element  of  danger  there  is  added  knowledge  that  the  thing  will  be  used 
by  persons  other  than  the  purchaser,  and  used  without  new  tests,  then, 
irrespective  of  contract,  the  manufacturer  of  this  thing  of  danger  is 
under  a  duty  to  make  it  carefully.  That  is  as  far  as  we  are  required 
to  go  for  the  decision  of  this  case.  There  must  be  knowledge  of  a 
danger,  not  merely  possible,  but  probable.  It  is  possible  to  use  al- 
most anything  in  a  way  that  will  make  it  dangerous  if  defective.  That 
is  not  enough  to  charge  the  manufacturer  with  a  duty  independent  of 
his  contract.  Whether  a  given  thing  is  dangerous  may  be  sometimes 
a  question  for  the  court  and  sometimes  a  question  for  the  jury.  There 
must  also  be  knowledge  that  in  the  usua.1  course  of  events  the  dan- 
ger will  be  shared  by  others  than  the  buyer.  Such  knowledge  may 
often  be  inferred  from  the  nature  of  the  transaction.  But  it  is  possible 
that  even  knowledge  of  the  danger  and  of  the  use  will  not  always  be 
enough.  The  proximity  or  remoteness  of  the  relation  is  a  factor  to 
be  considered.  We  are  dealing  now  with  the  liability  of  the  manu- 
facturer of  the  finished  product,  who  puts  it  on  the  market  to  be  used 
without  inspection  by  his  customers.  If  he  is  negligent,  where  danger 
is  to  be  foreseen,  a  liability  will  follow. 

We  are  not  required,  at  this  time,  to  say  that  it  is  legitimate  to  go 
back  of  the  manufacturer  of  the  finished  product  and  hold  the  manu- 
facturers of  the  component  parts.  To  make  their  negligence  a  cause 
of  imminent  danger,  an  independent  cause  must  often  intervene;  the 
manufacturer  of  the  finished  product  must  also  fail  in  his  duty  of  in- 
spection. It  may  be  that  in  those  circumstances  the  negligence  of  the 
earlier  members  of  the  series  is  too  remote  to  constitute,  as  to  the  ulti- 
mate user,  an  actionable  wrong.  Beven  on  Negligence  (3d  Ed.)  50,  51, 
54 ;  Wharton  on  Negligence  (2d  Ed.)  §  134 ;  Leeds  v.  N.  Y.  Tel.  Co., 
178  N.  Y.  118,  70  N.  E.  219;  Sweet  v.  Perkins,  196  N.  Y.  482,  90 
N.  E.  50;  Hayes  v.  Hyde  Park,  153  Mass.  514,  516,  27  N.  E.  522,  12 
L.  R.  A.  249.  We  leave  that  question  open.  We  shall  have  to  deal 
with  it  when  it  arises.  The  difficulty  which  it  suggests  is  not  present 
in  this  case.  There  is  here  no  break  in  the  chain  of  cause  and  effect. 


DUTY   OF   MAKER   OR   VENDOR   OF   CHATTEL  327 

In  such  circumstances,  the  presence  of  a  known  danger,  attendant  up- 
on a  known  use,  makes  vigilance  a  duty.  We  have  put  aside  the  no- 
tion that  the  duty  to  safeguard  life  and  limb,  when  the  consequences 
of  negligence  may  be  foreseen,  grows  out  of  contract  and  nothing  else. 
We  have  put  the  source  of  the  obligation  where  it  ought  to  be.  We 
have  put  its  source  in  the  law. 

From  this  survey  of  the  decisions,  there  thus  emerges  a  definition  of 
the  duty  of  a  manufacturer  which  enables  us  to  measure  this  defend- 
ant's liability.  Beyond  all  question,  the  nature  of  an  automobile  gives 
warning  of  probable  danger  if  its  construction  is  defective.  This  au- 
tomobile was  designed  to  go  50  miles  an  hour.  Unless  its  wheels  were 
sound  and  strong,  injury  was  almost  certain.  It  was  as  much  a  thing 
of  danger  as  a  defective  engine  for  a  railroad.  The  defendant  knew 
the  danger.  It  knew  also  that  the  car  would  be  used  by  persons  other 
than  the  buyer.  This  was  apparent  from  its  size ;  there  were  .seats 
for  three  persons.  It  was  apparent  also  from  the  fact  that  the  buyer 
was  a  dealer  in  cars,  who  bought  to  resell.  The  maker  of  this  car 
supplied  it  for  the  use  of  purchasers  from  the  dealer  just  as  plainly 
as  the  contractor  in  Devlin  v.  Smith  supplied  the  scaffold  for  use  by 
the  servants  of  the  owner.  The  dealer  was  indeed  the  one  person  of 
whom  it  might  be  said  with  some  approach  to  certainty  that  by  him 
the  car  would  not  be  used.  Yet  the  defendant  would  have  us  say  that 
he  was  the  one  person  whom  it  was  under  a  legal  duty  to  protect. 
The  law  does  not  lead  us  to  so  inconsequent  a  conclusion. .  Precedents 
drawn  from  the  days  of  travel  by  stagecoach  do  not  fit  the  conditions 
of  travel  to-day.  The  principle  that  the  danger  must  be  imminent 
does  not  change,  but  the  things  subject  to  the  principle  do  change. 
They  are  whatever  the  needs  of  life  in  a  developing  civilization  require 
them  to  be. 

In  reaching  this  conclusion,  we  do  not  ignore  the  decisions  to  the 
contrary  in  other  jurisdictions.  It  was  held  in  Cadillac  Co.  v.  John- 
son, 221  Fed.  801,  137  C.  C.  A.  279,  L.  R.  A.  1915E,  287,  that  an  au- 
tomobile is  not  within  the  rule  of  Thomas  v.  Winchester.  There  was, 
however,  a  vigorous  dissent.  Opposed  to  that  decision  is  one  of  the 
Court  of  Appeals  of  Kentucky.  Olds  Motor  Works  v.  Shaffer,  145 
Ky.  616,  140  S.  W.  1047,  37  L.  R.  A.  (N.  S.)  560,  Ann.  Cas.  1913B, 
689.  The  earlier  cases  are  summarized  by  Judge  Sanborn  in  Huset 
v.  J.  I.  Case  Threshing  Machine  Co.,  120  Fed.  865,  57  C.  C.  A.  237,  61 
L.  R.  A.  303.  Some  of  them,  at  first  sight  inconsistent  with  our  con- 
clusion, may  be  reconciled  upon  the  ground  that  the  negligence  was  too 
remote,  and  that  another  cause  had  intervened.  But  even  when  they 
cannot  be  reconciled,  the  difference  is  rather  in  the  application  of  the 
principle  than  in  the  principle  itself.  Judge  Sanborn  says,  for  ex- 
ample, that  the  contractor  who  builds  a  bridge,  or  the  manufacturer 
who  builds  a  car,  cannot  ordinarily  foresee  injury  to  other  persons  than 
the  owner  as  the  probable  result.  120  Fed.  865,  at  page  867,  57  C. 
C.  A.  237,  at  page  239,  61  L.  R.  A.  303.  We  take  a  different  view. 


328  NEGLIGENCE 

We  think  that  injury  to  others  is  to  be  foreseen  not  merely  as  a  pos- 
sible, but  as  an  almost  inevitable,  result.  See  the  trenchant  criticism  in 
Bohlen,  supra,  at  page  351.  Indeed,  Judge  Sanborn  concedes  that  his 
view  is  not  to  be  reconciled  with  our  decision  in  Devlin  v.  Smith,  supra. 
The  doctrine  of  .that  decision  has  now  become  the  settled  law  of  this 
state,  and  we  have  no  desire  to  depart  from  it. 

In  England  the  limits  of  the  rule  are  still  unsettled.  Winterbottom 
v.  Wright,  10  M.  &  W.  109,  is  often  cited.  The  defendant  undertook 
to  provide  a  mail  coach  to  carry  the  mail  bags.  The  coach  broke  down 
from  latent  defects  in  its  construction.  The  defendant,  however,  was 
not  the  manufacturer.  The  court  held  that  he  was  not  liable  for  in- 
juries to  a  passenger.  The  case  was  decided  on  a  demurrer  to  the 
declaration.  Lord  Esher  points  out  in  Heaven  v.  Fender,  supra,  at 
page  513,  that  the  form  of  the  declaration  was  subject  to  criticism.  It 
did  not  fairly  suggest  the  existence  of  a  duty  aside  from  the  special 
contract  which  was  the  plaintiff's  main  reliance.  See  the  criticism  of 
Winterbottom  v.  Wright,  in  Bohlen,  supra,  at  pages  281,  283.  At  all 
events,  in  Heaven  v.  Fender,  supra,  the  defendant,  a  dock  owner,  who 
put  up  a  staging  outside  a  ship,  was  held  liable  to  the  servants  of  the 
shipowner.  In  Elliot  v.  Hall,  15  Q.  B.  D.  315,  the  defendant  sent  out 
a  defective  truck  laden  with  goods  which  he  had  sold.  The  buyer's 
servants  unloaded  it,  and  were  injured  because  of  the  defects.  It  was 
held  that  the  defendant  was  under  a  duty  "not  to  be  guilty  of  negli- 
gence with  regard  to  the  state  and  condition  of  the  truck."  There 
seems  to  have  been  a  return  to  the  doctrine  of  Winterbottom  v.  Wright 
in  Earl  v.  Lubbock,  [1905]  1  K.  B.  253.  In  that  case,  however,  as 
in  the  earlier  one,  the  defendant  was  not  the  manufacturer.  He  had 
merely  made  a  contract  to  keep  the  van  in  repair.  A  later  case  (White 
v.  Steadman,  [1913]  3  K.  B.  340,  348)  emphasizes  that  element.  A 
livery  stable  keeper  who  sent  out  a  vicious  horse  was  held  liable,  not 
merely  to  his  customer,  but  also  to  another  occupant  of  the  carriage, 
and  Thomas  v.  Winchester  was  cited  and  followed.  White  v.  Steadman, 
supra,  at  pages  348,  349.  It  was  again  cited  and  followed  in  Domin- 
ion Natural  Gas  Co.  v.  Collins,  [1909]  "A.  C.  640,  646.  From  these 
cases  a  consistent  principle  is  with  difficulty  extracted.  The  English 
courts,  however,  agree  With  ours  in  holding  that  one  who  invites  an- 
other to  make  use  of  an  appliance  is  bound  to  the  exercise  of  reasonable 
care.  Caledonian  Ry.  Co.  v.  Mulholland,  [1898]  A.  C.  216,  227;  In- 
derman  v.  Dames,  L.  R.  [1  C.  P.]  274.  That  at  bottom  is  the  under- 
lying principle  of  Devlin  v.  Smith.  The  contractor  who  builds  the 
scaffold  invites  the  owner's  workmen  to  use  it.  The  manufacturer  who 
sells  the  automobile  to  the  retail  dealer  invites  the  dealer's  customers 
to  use  it.  The  invitation  is  addressed  in  the  one  case  to  determinate 
persons  and  in  the  other  to  an  indeterminate  class,  but  in  each  case  it  is 
equally  plain,  and  in  each  its  consequences  must  be  the  same. 

There. is  nothing  anomalous  in  a  rule  which  imposes  upon  A.,  who 
has  contracted  with  B.,  a  duty  to  C.  and  D.  and  others  according  as 


DUTY  OF  MAKER  OK  VENDOR  OF  CHATTEL          329 

he  knows  or  does  not  know  that  the  subject-matter  of  the  contract  is 
intended  for  their  use.  We  may  find  an  analogy  in  the  law  which 
measures  the  liability  of  landlords.  If  A.  leases  to  B.  a  tumble-down 
house,  he  is  not  liable,  in  the  absence  of  fraud,  to  B.'s  guests  who  enter 
it  and  are  injured.  This  is  because  B.  is  then  under  the  duty  to  repair 
it,  the  lessor  has  the  right  to  suppose  that  he  will  fulfill  that  duty,  and, 
if  he  omits  to  do  so,  his  guests  must  look  to  him.  Bohlen,  supra,  at 
page  276.  But  if  A.  leases  a  building  to  be  used  by  the  lessee  at  once 
as  a  place  of  public  entertainment,  the  rule  is  different.  There  injury 
to  persons  other  than  the  lessee  is  to  be  foreseen,  and  foresight  of  the 
consequences  involves  the  creation  of  a  duty.  Junkermann  v.  Tilyou 
R.  Co.,  213  N.  Y.  404,  108  N.  E.  190,  L.  R.  A.  1915F,  700,  and  cases 
there  cited. 

In  this  view  of  the  defendant's  liability  there  is  nothing  inconsistent 
with  the  theory  of  liability  on  which  the  case  was  tried.  It  is  true  that 
the  court  told  the  jury  that  "an  automobile  is  not  an  inherently  danger- 
ous vehicle."  The  meaning,  however,  is  made  plain  by  the  context. 
The  meaning  is  that  danger  is  not  to  be  expected  when  the  vehicle  is 
well  constructed.  The  court  left  it  to  the  jury  to  say  whether  the  de- 
fendant ought  to  have  foreseen  that  the  car,  if  negligently  constructed, 
would  become  "imminently  dangerous."  Subtle  distinctions  are  drawn 
by  the  defendant  between  things  inherently  dangerous  and  things  im- 
minently dangerous,  but  the  case  does  not  turn  upon  these  verbal 
niceties.  If  danger  was  to  be  expected  as  reasonably  certain,  there 
was  a  duty  of  vigilance,  and  this  whether  you  call  the  danger  inherent 
or  imminent.  In  varying  forms  that  thought  was  put  before  the  jury. 
We  do  not  say  that  the  court  would  not  have  been  justified  in  ruling 
as  a  matter  of  law  that  the  car  was  a  dangerous  thing.  If  there  was 
any  error,  it  was  none  of  which  the  defendant  can  complain. 

We  think  the  defendant  was  not  absolved  from  a  duty  of  inspection 
because  it  bought  the  wheels  from  a  reputable  manufacturer.  It  was 
not  merely  a  dealer  in  automobiles.  It  was  a  manufacturer  of  auto- 
mobiles. It  was  responsible  for  the  finished  product.  It  was  not  at 
liberty  to  put  the  finished  product  on  the  market  without  subjecting 
the  component  parts  to  ordinary  and  simple  tests.  Richmond  &  Dan- 
ville R.  R.  Co.  v.  Elliott,  149  U.  S.  266,  272,  13  Sup.  Ct.  837,  37  L. 
Ed.  728.  Under  the  charge  of  the  trial  judge  nothing  more  was  re- 
quired of  it.  The  obligation  to  inspect  must  vary  with  the  nature  of 
the  thing  to  be  inspected.  The  more  probable  the  danger  the  greater 
the  need  of  caution. 

There  is  little  analogy  between  this  case  and  Carlson  v.  Phcenix 
Bridge  Co.,  132  N.  Y.  273,  30  N.  E.  750,  where  the  defendant  bought 
a  tool  for  a  servant's  use.  The  making  of  tools  was  not  the  business 
in  which  the  master  was  engaged.  Reliance  on  the  skill  of  the  manu- 
facturer was  proper  and  almost  inevitable.  But  that  is  not  the  defend- 


330  NEGLIGENCE 

ant's  situation.  Both  by  its  relation  to  the  work  and  by  the  nature  of 
its  business,  it  is  charged  with  a  stricter  duty. 

Other  rulings  complained  of  have  been  considered,  but  no  error  has 
been  found  in  them. 

HISCOCK,  CHASE,  and  CUDDEBACK,  JJ.,  concur  with  CARDOZO,  J., 
and  HOGAN,  J.,  concurs  in  result.  WILLARD  BARTI^TT,  C.  J.,  reads 
dissenting  opinion.  POUND,  J.,  not  voting. 


III.  Duty  of  Keeper  of  Animals 


FILBURN  v.  PEOPLE'S  PALACE  &  AQUARIUM  CO.,  Limited. 
an  the  Court  of  Appeal,  1890.    25  Q.  B.  Div.  258.) 

The  action  was  brought  to  recover  damages  for  injuries  sustained 
by  the  plaintiff  by  his  being  attacked  by  an  elephant,  which  was  the 
property  of  the  defendants,  and  was  being  exhibited  by  them.  The 
learned  judge  left  three  questions  to  the  jury:  whether  the  elephant 
was  an  animal  dangerous  to  man ;  whether  the  defendant  knew  the  el- 
ephant to  be  dangerous;  and  whether  the  plaintiff  brought  the  attack 
on  himself.  The  jury  answered  all  three  questions  in  the  negative. 
The  learned  judge  entered  judgment  for  the  plaintiff  for  a  sum 
agreed  upon  in  case  the  plaintiff  should  be  entitled  to  recover. 

The  defendants  appealed. 

Lord  ESHER,  M.  R.  The  only  difficulty  I  feel  in  the  decision  of 
this  case  is  whether  it  is  possible  to  enunciate  any  formula  under  which 
this  and  similar  cases  may  be  classified.  The  law  of  England  recog- 
nizes two  distinct  classes  of  animals ;  and  as  to  one  of  those  classes,  it 
cannot  be  doubted  that  a  person  who  keeps  an  animal  belonging  to 
that  class  must  prevent  it  from  doing  injury,  and  it  is  immaterial 
whether  he  knows  it  to  be  dangerous  or  not.  As  to  another  class,  the 
law  assumes  that  animals  belonging  to  it  are  not  of  a  dangerous  na- 
ture, and  any  one  who  keeps  an  animal  of  this  kind  is  not  liable  for  the 
damage  it  may  do,  unless  he  knew  that  it  was  dangerous.  What,  then, 
is  the  best  way  of  dealing  generally  with  these  different  cases  ?  I  sup- 
pose there  can  be  no  dispute  that  there  are  some  animals  that  every 
one  must  recognize  as  not  being  dangerous  on  account  of  their  i.-ature. 
Whether  they  are  ferae  naturae  so  far  as  rights  of  property  are  con- 
cerned is  not  the  question ;  they  certainly  are  not  so  in  the  sense  that 
they  are  dangerous.  There  is  another  set  of  animals  that  the  law  has 
recognized  in  England  as  not  being  of  a  dangerous  nature,  such  as 
sheep,  horses,  oxen,  dogs,  and  others  that  I  will  not  attempt  to  enumer- 
ate. I  take  it  this  recognition  has  come  about  from  the  fact  that  years 

11  For  discussion  of  principles,  see  Chapln  on  Torts,  §  108. 


DUTY  OF  KEEPER  OF  ANIMALS  831 

ago,  and  continuously  to  the  present  time,  the  progeny  of  these  classes 
has  been  found  by  experience  to  be  harmless,  and  so  the  law  assumes 
the  result  of  this  experience  to  be  correct  without  further  proof.  Un- 
less an  animal  is  brought  within  one  of  these  two  descriptions, — that  is, 
unless  it  is  shown  to  be  either  harmless  by  its  very  nature,  or  to  belong 
to  a  class  that  has  become  so  by  what  may  be  called  cultivation, — it 
falls  within  the  class  of  animals  as  to  which  the  rule  is,  that  a  man 
who  keeps  one  must  take  the  responsibility  of  keeping  it  safe.  It  can- 
not possibly  be  said  that  an  elephant  comes  within  the  class  of  animals 
known  to  be  harmless  by  nature,  or  within  that  shewn  by  experience  to 
be  harmless  in  this  country,  and  consequently  it  falls  within  the  class 
of  animals  that  a  man  keeps  at  his  peril,  and  which  he  must  prevent 
from  doing  injury  under  any  circumstances,  unless  the  person  to 
whom  the  injury  is  done  brings  it  on  himself.  It  was,  therefore,  im- 
material in  this  case  whether  the  particular  animal  was  a  dangerous 
one,  or  whether  the  defendants  had  any  knowledge  that  it  was  so. 
The  judgment  entered  was  in  these  circumstances  right,  and  the  ap- 
peal must  be  dismissed. 

LJNDLEY,  L.  J.  I  am  of  the  same  opinion.  The  last  case  of  this 
kind  discussed  was  May  v.  Burdett,  [1846]  9  Q.  B.  101,  but  there  the 
monkey  which  did  the  mischief  was  said  to  be  accustomed  to  attack 
mankind,  to  the  knowledge  of  the  person  who  kept  it.  That  does  not 
decide  the  case.  We  have  no  case  cited  to  us,  nor  any  evidence  to 
show  that  elephants  in  this  country  are  not  as  a  class  dangerous ;  nor 
are  they  commonly  known  here  to  belong  to  the  class  of  domesticated 
animals.  Therefore  a  person  who  keeps  one  is  liable,  though  he  does 
not  know  that  the  particular  one  that  he  keeps  is  mischievous.  Apply- 
ing that  principle  to  this  case,  it  appears  that  the  judgment  for  the 
plaintiff  was  right,  and  this  appeal  must  be  dismissed. 

BOWEN,  L.  J.  I  am  of  the  same  opinion.  The  broad  principle  that 
governs  this  case  is  that  laid  down  in  Fletcher  v.  Rylands,  L.  R.  3  H. 
L-  330,  that  a  person  who  brings  upon  his  land  anything  that  would 
not  naturally  come  upon  it,  and  which  is  in  itself  dangerous,  must  take 
care  that  it  is  kept  under  proper  control.  The  question  of  liability 
for  damage  done  by  mischievous  animals  is  a  branch  of  that  law  which 
has  been  applied  in  the  same  way  from  the  time  of  Lord  Holt  and  of 
Hale  until  now.  People  must  not  be  wiser  than  the  experience  of  man- 
kind. If  from  the  experience  of  mankind  a  particular  class  of  animals 
is  dangerous,  though  individuals  may  be  tamed,  a  person  who  keeps 
one  of  the  class  takes  the  risk  of  any  damage  it  may  do.  If,  on  the 
other  hand,  the  animal  kept  belongs  to  a  class  which,  according  to  the 
experience  of  mankind,  is  not  dangerous,  and  not  likely  to  do  mischief, 
and  if  the  class  is  dealt  with  by  mankind  on  that  footing,  a  person  may 
safely  keep  such  an  animal  unless  he  knows  that  the  particular  animal 
that  he  keeps  is  likely  to  do  mischief.  It  cannot  be  doubted  that  ele- 
phants, as  a  class,  have  not  been  reduced  to  a  state  of  subjection ;  they 
still  remain  wild  and  untamed,  though  individuals  are  brought  to  a  de- 


332  NEGLIGENCE 

gree  of  lameness  which  amounts  to  domestication.  A  person,  there- 
fore, who  keeps  an  elephant,  does  so  at  his  own  risk,  and  an  action 
can  be  maintained  for  any  injury  done  by  it,  although  the  owner  had 
no  knowledge  of  its  mischievous  propensities.  I  agree,  therefore,  that 
the  appeal  must  be  dismissed.12 


IV.  Standard  of  Care 


GALVESTON  CITY  R.  CO.  v.  HEWITT. 

(Supreme  Court  of  Texas,  1887.    67  Tex.  473,  3  S.  W.  705,  60  Am.  Rep.  32.) 

This  suit  was  brought  in  the  name  of  appellee,  an  infant  nineteen 
months  old  at  the  date  of  the  injury  complained  of.  He  was  run  over 
by  a  street  car  of  appellant  in  a  public  street  in  Galveston  between 
four  and  five  o'clock  in  the  daytime,  and  by  a  car  under  the  control 
ri  one  of  appellant's  employes. 

STAYTON,  Associate  Justice.1*  The  charge  of  the  court  complained 
of  in  the  second  assignment  was  correct,  and  there  was  evidence  which 
made  the  charge  applicable  to  the  case.  The  appellee,  a  child  nineteen 
months  of  age,  was  seen  on  the  track  of  appellant's  street  railway,  in 
advance  of  an  approaching  car,  which  ran  over  him.  Whether  the 
driver  saw  the  child  does  not  appear,  but  the  inference,  from  the  fact 
that  he  did  not  stop  the  car  until  he  had  reached  the  next  corner  after 
running  over  the  child,  is  that  he  did  not. 

The  only  person  who  testified  in  the  case,  that  saw  the  accident  at 
the  distance  of  about  one  hundred  feet  from  the  approaching  car,  saw 
the  child  on  the  track  between  himself  and  the  car,  and  gave  a  warn- 
ing cry  of  danger,  which  was  unheard  or  unheeded.  The  driver  was 
on  the  car,  but  whether  at  his  post  or  inside  of  the  car  is  left  in  doubt. 
The  animal  drawing  the  car  seems  to  have  seen  the  danger,  which  the 
driver  ought  to  have  seen,  and  ran  off  to  one  side  of  the  track. 

The  accident  occurred  in  a  public  street  about  four  or,  five  o'clock 
on  a  bright  afternoon.  The  charge  given  without  request  made  the 
right  of  the  appellee  to  recover  to  depend  upon  the  fact  that  his  in- 
jury resulted  from  the  negligence  of  the  driver,  and  it  assumed  no 
fact.  It  informed  the  jury  that  "negligence  is  the  want  of  such  care 
and  prudence  as  prudent  persons  observe  under  similar  circumstances, 
and  negligence  is  a  question  of  fact  to  be  proved  just  as  any  other 
fact,"  and  that  the  burden  of  proving  its  existence  rested  upon  the 
plaintiff. 

12  Compare  Le  Forest  v.  Tolman,  supra,  p.  123. 

is  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  109-111. 

i*  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  Is  omitted. 


STANDARD   OF   CARE  333 

At  the  request  of  the  defendant  the  court  gave  the  following  in- 
structions: "If  you  believe  from  the  evidence  that  the  plaintiff  was 
injured  by  being  run  over  by  the  car,  you  will  find  for  the  defendant, 
unless  it  appears  to  your  satisfaction  that  the  running  over  of  the 
plaintiff  by  the  car  was  by  reason  of  the  negligence  of  the  driver.  If 
you  believe,  from  the  evidence  that  the  plaintiff  was  injured,  but  do 
not  believe  that  such  injury  resulted  from  the  plaintiff  being  run  over 
by  the  car,  you  will  find  for  the  defendant." 

The  brief  and  argument  for  appellant  assert  that  the  charge  "ab- 
solutely assumes,  presupposes,  that  the  plaintiff  was  injured  by  the 
defendant,  and  that  the  injury  was  due  to  defendant's  negligence." 
The  charges  contain  no  such  assumptions,  and  are  remarkably  free 
from  such  defects. 

At  request  of  counsel  for  appellee  the  court  instructed  the  jury  as 
follows :  "The  jury  are  instructed  that  it  was  the  duty  of  the  defend- 
ant company  to  exercise  the  highest  degree  of  diligence  towards  a 
child  of  tender  years  and  without  discretion,  and  that  slight  negligence 
would  make  defendant  company  liable  in  damages."  This  charge  is 
assigned  as  error. 

Since  the  case  of  Coggs  v.  Bernard  [2  Ld.  Raym.  909]  three  degrees 
or  grades  of  negligence  with  their  equivalent  grades  of  diligence  have 
been  recognized  by  English  and  American  text-writers,  and  by  the 
courts;  but,  however  correct  in  theory  the  classification  may  be,  the 
utmost  difficulty  has  been  found  by  the  courts  in  applying  it  to  the  or- 
dinary affairs  of  life;  and  many  of  the  most  learned  have  regretted 
their  recognition,  while  all,  in  the  actual  adjudication  of  cases,  have 
more  or  less  ignored  the  classification.  While  to  the  mind  of  the 
learned  jurist,  trained  to  theoretical  refinements  and  capable  of  mak- 
ing nice  distinctions,  grounds  on  which  the  grades  may  stand  may  be 
perceived,  yet  the  same  minds,  when  called  upon  to  apply  the  theories 
to  the  facts  of  given  cases,  will  be  unable  to  fix  the  point  in  fact  at 
which  the  one  grade  ceases  to  exist,  and  another  begins. 

Theories  which  cannot  be  given  a  practical  effect,  even  by  those 
most  skilled  in  technically  correct  theorizing,  certainly  ought  not  to 
be  given  much  weight  in  the  adjudication  of  the  multiform  affairs  of 
life,  which  must  be  conducted  through  persons  of  ordinary  intelligence 
largely,  without  any  theoretical  or  technical  learning. 

When  a  person  inadvertently  omits  or  fails  to  do  some  act  required 
in  the  discharge  of  a  legal  duty  to  another,  whether  such  duty  arises 
from  contract  or  from  the  nature  of  the  employment  in  which  the  per- 
son is  engaged,  then  such  an  omission  constitutes  actionable  negli- 
gence, if  as  an  ordinary  or  natural  sequence  it  produces  damage  to 
another. 

The  omission  may  be  classified  as  gross  or  slight  negligence  or  sim- 
ply as  negligence,  or  as  failure  to  use  the  highest,  ordinary  or  slight 
degree  of  diligence,  but  the  legal  obligation,  at  all  events,  to  make  com- 
pensation to  the  injured  person,  exists  if  the  omission  was  a  breach  of 


334  NEGLIGENCE 

duty  and  the  proximate  cause  of  the  injury.  What  facts  will  consti- 
tute that-  diligence  which  the  law  requires  must  depend  on  the  circum- 
stances of  each  particular  case.  The  omission  must  be  considered  in 
relation  to  the  business  in  which  the  person,  whose  duty  it  is  to  ex- 
ercise care,  is  engaged. 

If  the  business  be  one  hazardous  to  the  lives  of  others,  the  care  to- 
be  used  must  be  of  a  nature  more  exacting  than  required  where  m> 
such  hazard  exists ;  the  greater  the  hazard  the  more  complete  must  be 
the  exercise  of  care. 

The  exercise  of  that  care  requisite  to  the  discharge  of  a  legal  duty 
towards  an  adult  person  of  intelligence,  and  not  wanting  in  physical 
ability  to  take  care  of  himself,  if  exercised  towards  a  child  of  tender 
years,  wanting  in  intelligence  and  ability  to  take  care  of  itself,  would 
often  amount  to  what  is  usually  termed  gross  negligence.  A  railway 
carrier  of  passengers  may,  without  subjecting  itself  to  the  charge  of 
negligence,  permit  an  adult  passenger  to  pass  and  repass  from  one 
passenger  car  to  another  while  in  motion,  or  to  select  his  own  seat  or 
position  in  a  car,  if  there  be  not  some  danger  in  the  position  not  open 
to  the  observation  of  the  passenger ;  but  were  an  infant  of  tender  years 
and  without  discretion,  traveling  with  its  parents,  to  escape  from  their 
control,  and  to  attempt  to  do  the  same  things,  it  would  evidently  be 
the  duty  of  the  servants  of  the  carrier,  if  they  knew  of  it,  to  restrain 
the  acts  of  the  infant  in  these  respects,  or  any  other  from  which  injury 
to  it  was  likely  to  result ;  and  a  failure  to  do  so  would  be  negligence, 
which  would  render  the  carrier  liable  for  any  injury  that  might  re- 
sult from  such  neglect. 

It  is  frequently  said  that  a  carrier  of  passengers  is  bound  to  ex- 
ercise a  high  degree  of  care  for  their  safety;  and  that  for  an  injury 
resulting  to  them  from,  what  is  termed  negligence  or  slight  negligence, 
the  carrier  will  be  liable;  and  that  the  duty  to  exercise  extreme  care 
results  from  the  contract  of  carriage,  express  or  implied.  This  is 
true,- but  it  is  not  the  whole  truth,  for  the  duty  arises  from  the  hazard- 
ous character  of  the  business,  and  the  fact  that  human  life  is  imper- 
iled by  it.  The  contract  creates  the  relation  of  carrier  and  passenger, 
but  that  is  not  the  main  source  from  which  springs  the  duty  of  the 
carrier  to  exercise  a  high  degree  of  care. 

It  has  sometimes  been  said  that  a  carrier  owes  no  duty  to  persons 
other  than  passengers  and  employes,  other  than  that  it  must  not  in- 
tentionally, willfully,  or  wantonly  injure  them.  This  doctrine  has  not 
been  sanctioned  in  this  state. 

Ordinary  railway  companies,  running  cars  propelled  by  steam,  have 
the  exclusive  right  to  the  use  of  their  tracks,  except  at  such  places  as 
they  are  intersected  by  public  crossings  or  such  private  ways  as  they* 
may  permit,  and  they  may  therefore  expect  that  no  one  will  violate 
this  right,  and  may  rely  upon  a  clear  track,  but  it  is  very  generally 
held  that,  notwithstanding  this,  such  is  the  hazardous  nature  of  the 
business  in  which  they  are  engaged,  it  is  the  duty  of  such  carriers,  not 


STANDARD   OF   CARE  335 

only  for  the  safety  of  their  passengers,  but  for  the  safety  of  any  one 
who  may  be  on  the  track,  to  keep  a  look  out.  Street  railways  have  no 
exclusive  right  to  the  use  of  the  part  of  a  street  covered  by  their 
track,  but  all  persons  have  the  right  to  use  the  street  for  the  purposes 
for  which  streets  are  ordinarily  used,  and,  from  this  fact,  such  compa- 
nies may  expect  that  other  persons  will  use  the  street,  as  they  have  the 
right  to  do,  and  it  is  therefore  incumbent  upon  them  to  ascertain 
whether  the  track  be  clear. 

This  duty  the  law  casts  upon  them  as  one  of  the  conditions  on  which 
they  are  permitted  to  use  streets,  which  to  some  extent  they  divert 
from  the  more  ordinary  uses,  for  the  private  advantage  of  the  carrier, 
as  well  as  the  public  convenience.  This  duty  is  as  firmly  fixed  on  this 
ground,  and  upon  the  ground  of  the  hazardous  character  of  such  a 
business  conducted  in  the  street  of  a  town  or  city,  as  is  the  duty  of 
the  carrier  of  passengers  by  steam,  fixed  by  the  hazard  of  that  business 
to  human  life,  or  by  the  contract  for  carriage.  % 

If  a  person  be  seen  on  the  track  of  either  class  of  railway,  it  may 
be  assumed,  if  the  person  be  an  adult,  that  he  will  leave  the  track 
before  the  train  or  car  reaches  him,  and  this  presumption  may  be  in- 
dulged so  long  as  danger  does  not  become  imminent,  but  no  longer. 
From  the  time  that  danger  is  seen  to  be  imminent  it  becomes  the  duty 
of  such  a  railway  company  to  use  the  highest  degree  of  care  to  arrest 
it,  and  a  failure  to  do  so  will  constitute  culpable  negligence,  which 
may  or  may  not  fix  liability,  as  that  question  may  be  affected  by  the 
contributory  negligence  of  the  injured  person.  No  such  presumption, 
however,  can  be  indulged  as  to  the  prudent  conduct  of  an  infant  of  no 
greater  age  than  was  the  plaintiff  at  the  time  he  is  alleged  to  have  been 
injured. 

It  may  be  assumed,  as  matter  of  law,  that  it  is  the  duty  of  a  street 
railway  company  to  know  that  the  track  in  advance  of  its  car  is  clear, 
and  that  it  will  be  liable  for  any  injury  resulting  from  the  want  of 
this  knowledge,  unless  its  liability  is  defeated  by  the  contributory  neg- 
ligence of  the  injured  person,  or  unless  it  appears  that  the  person  in- 
jured went  upon  its  track  at  a  place  so  near  the  approaching  car  that 
the  driver,  by  the  exercise  of  care,  could  not  avoid  the  injury  after  the 
person  was  seen  or  might  have  been  seen.  This  involves  the  proposi- 
tion that  such  a  railway  company  is  bound  to  use  such  diligence  as 
will  enable  it  to  know  whether  the  track  in  front  of  its  car  is  clear, 
and  if  to  this  end  the  exercise  of  the  highest  degree  of  diligence  is 
necessary,  it  must  be  used. 

If  it  be  seen  that  a  person  is  on  the  track  of  such  a  railway  com- 
pany, in  advance  of  its  car,  it  must  use  such  care  as  will  avoid  injury 
to  such  person,  if  this  can  be  done,  and  for  a  failure  to  do  so  it  will  be 
liable  for  the  injury  resulting,  unless  such  liability  is  defeated  by  the 
contributory  negligence  of  the  injured  person.  The  care  requisite  to 
avoid  injury  in  such  a  case  embraces  every  degree.  The  charge  of  a 
court  must  be  considered  in  relation  to  the  facts  of  the  particular  case. 


336  NEGLIGENCE 

In  the  case  before  us  the  uncontroverted  fact  is  that  the  child  was 
on  appellant's  track  in  advance  of  the  car.  Whether  it  was  seen  by 
the  driver  is  not  shown,  but  we  concur  in  the  opinion  of  counsel  for 
appellant,  after  a  careful  examination  of  all  the  evidence,  that  the. 
driver  did  not  see  it.  It  was  his  duty  to  exercise  the  highest  degree 
of  diligence  to  ascertain  whether  persons  were  on  th'e  track  in  advance 
of  the  car;  and,  in  so  far  as  the  charge  complained  of  affects  this 
question,  it  was  correct.  If  the  driver  saw  the  child  on  the  track  in 
advance  of  the. car,  it  was  his  duty  to  exercise  all  the  diligence  then 
possible  to  avoid  injury  to  it;  and  in  this  aspect  of  the  case  the  charge 
was  not  erroneous. 

It  is  insisted  that  "the  reasonable  and  probable  conclusion  is  that 
the  child  placed  itself  suddenly  on  the  track  immediately  in  front  of 
the  car,  so  that  he  was  not  discernible  by  the  driver,  or,  being  discern- 
ible, was  seen  too  late  to  enable  the  driver  to  avert  the  catastrophe," 
and  that  "this  inference  is  strengthened  by  the  further  fact  *  *  * 
that  the  mule  drawing  the  car  ran  off  to  one  side  of  the  track.  The 
child  must  have  placed  himself  suddenly  and  immediately  in  front  of 
the  mule,  so  near  that  the  momentum  of  the  car  hurried  it  over  him 
and  concealed  him  from  the  view  of  the  driver  at  the  very  moment  of 
the  animal's  abrupt  rearing  to  one  side."  Whether  this  was  so  was 
for  the  jury  to  determine.  If,  however,  such  was  the  fact,  it  was  still 
proper  that  the  appellant  should  have  been  held  to  that  degree  of 
care  required  by  the  charge,  under  which  the  jury  may  have  come  to 
the  conclusion,  even  though  the  child  suddenly  entered  upon  the  track 
but  a  short  distance  in  front  of  the  car,  that  the  injury  might  have 
been  averted  had  the  driver  used  such  care  as  the  charge  required, 
after  the  child  was  seen  or  ought  to  have  been  seen.  *  *  *  Af- 
firmed. 


U.  Res  IPSA  LOQUITUR15 


GRIFFEN  v.  MANICE. 

(Court  of  Appeals  of  New  York,  1901.     166  N.  Y.  188,  59  N.  E.  925,  52  L.  R.  A, 
922,  82  Am.  St.  Rep.  630.) 


,  J.16  This  action  was  brought  to  recover  damages  for  the 
death  of  plaintiff's  intestate,  alleged  to  have  been  caused  by  the  defend- 
ant's negligence.  On  December  6,  1898,  the  defendant  was  the  owner 
and  in  possession  of  an  office  building  in  the  city  of  New  York  in 
which  there  was  maintained  and  operated  an  elevator  for  carrying 

IB  For  discussion  of  principles,  see  Chapin  on  Torts,  §  11L 
is  A  portion  of  the  opinion  of  Cullen,  J.,  the  concurring  opinion  of  Gray, 
J.,  and  the  dissenting  opinion  of  Bartlett.  J..  are-  omitted. 


STANDARD   OF   CAKE  337 

passengers  to  and  from  the  several  floors.  The  deceased  was  the 
secretary  of  the  United  States  Fire  Insurance  Company,  which  had 
leased  offices  in  the  basement,  and  also  in  the  seventh  and  eighth 
stories.  On  the  day  in  question,  after  having  attended  a  meeting  of 
the  directors  of  the  company,  held  on  the  eighth  story,  he  took  the 
elevator  to  return  to  the  basement.  The  evidence  tends  to  show  that 
the  elevator  car  descended  with  unusual  rapidity,  and  instead  of  stop- 
ping at  the  basement,  which  was  the  lowest  floor,  passed  beyond  until 
it  struck  the  bumpers  at  the  bottom  of  the  shaft  with  such  force  as  to 
rebound  about  18  inches,  and  throw  some  of  the  occupants  of  the  ele- 
vator down.  Almost  immediately  thereafter  the  counterbalance 
weights,  which  move  in  a  reverse  direction  to  that  of  the  car,  and 
consist  of  pieces  of  iron,  each  from  40  to  60  pounds  in  weight,  fell 
down  the  shaft,  breaking  through  the  top  of  the  elevator  car.  One 
of  them  struck  the  plaintiff's  intestate  on  the  head,  killing  him  in- 
stantly. The  plaintiff  recovered  a  verdict  at  the  trial  term,  and  the 
judgment  entered  thereon  was  unanimously  affirmed  by  the  appellate 
division.  By  leave  of  the  appellate  division,  an  appeal  has  been  taken 
to  this  court. 

As  the  decision  below  was  unanimous,  the  exception  to  the  denial  of 
the  defendant's  motion  to  dismiss  the  complaint  at  the  close  of  the 
evidence,  and  the  question  of  the  sufficiency  of  the  evidence  to  sup- 
port the  verdict,  cannot  be  argued  in  this  court  (Const,  art.  6,  §  9), 
and  our  review  of  the  case  must  be  confined  to  the  correctness  of  the 
trial  court  in  its  ruling  on  the  admission  of  evidence  and  its  charge 
to  the  jury.  We  shall  limit  our  discussion  to  the  consideration  of  the 
three  most  important  objections  urged  by  the  appellant  against  the  re- 
covery. 

The  trial  court,  over  the  appellant's  exception,  charged  to  the  jury : 
"There  is  another  rule  which  the  plaintiff  asks  me  to  call  to  your 
attention,  and  I  am  going  to  call  to  your  attention  the  rule  that  where 
an  accident  happens  which,  in  the  ordinary  course  of  business,  would 
not  happen  if  the  required  degree  of  care  was  observed,  the  presump- 
tion is  that  such  care  was  wanting;  and  if  you  find  in  this  case  that 
this  accident  was  one  which,  in  the  ordinary  course  of  business,  would 
not  have  happened  if  the  required  degree  of  care  was  observed,  you 
have  a  right  to  presume  that  such  care  was  wanting."  It  is  insisted 
for  the  appellant  that  this  instruction  was  erroneous,  and  that  the  jury 
was  not  authorized  in  this  case  to  infer  the  existence  of  negligence 
from  the  accident  alone.  Primarily,  it  is  argued  that  the  principle 
which  usually  passes  under  the  name  of  "res  ipsa  loquitur"  applies 
only  to  cases  where  the  relation  between  the  parties  is  the  contractual 
one  of  carrier  or  bailee,  or  in  which  the  party  injured  has  been  injured 
while  on  a  public  highway.  While  there  are  some  expressions  to  be 
found  in  text-books  and  decisions  which  seem  to  support  this  claim, 
CHAP.CAS.TOBTS — 22 


338  NEGLIGENCE 

in  my  judgment  it  is  unfounded,  and  the  application  of  the  principle 
depends  on  the  circumstances  and  character  of  the  occurrence,  and 
not  on  the  relation  between  the  parties,  except  indirectly,  so  far  as 
that  relation  defines  the  measure  of  duty  imposed  on  the  defendant. 
Writing  of  res  ipsa  loquitur,  it  is  said  in  Shear.  &  R.  Neg.  §  59:  "It 
is  not  that,  in  any  case,  negligence  can  be  assumed  from  the  mere  fact 
of  an  accident  and  an  injury;  but  in  these  cases  the  surrounding  cir- 
cumstances, which  are  necessarily  brought  into  view  by  showing  how 
the  accident  occurred,  contain,  without  further  proof,  sufficient  evi- 
dence of  the  defendant's  duty  and  of  his  neglect  to  perform  it.  The 
fact  of  the  casualty  and  the  attendant  circumstances  may  themselves 
furnish  all  the  proof  of  negligence  that  the  injured  person  is  able  to 
offer  or  that  it  is  necessary  to  offer."  I  think  a  single  illustration  will 
show  the  correctness  of  the  view  of  the  learned  authors,  that  it  is 
not  the  injury,  but  the  manner  and  circumstances  of  the  injury,  that 
justify  the  application  of  the  maxim  and  the  inference  of  negligence. 
If  a  passenger  in  a  car  is  injured  by  striking  the  seat  in  front  of  him, 
that,  of  itself,  authorizes  no  inference  of  negligence.  If  it  be  shown, 
however,  that  he  was  precipitated  against  the  seat  by  reason  of  the 
train  coming  in  collision  with  another  train,  or  in  consequence  of  the 
car  being  derailed,  the  presumption  of  negligence  arises.  The  res, 
therefore,  includes  the  attending  circumstances,  and,  so  defined,  the 
application  of  the  rule  presents  principally  the  question  of  the  suf- 
ficiency of  circumstantial  evidence  to  establish,  or  to  justify  the  jury 
in  inferring,  the  existence  of  the  traversable  or  principal  fact  in  is- 
sue, the  defendant's  negligence.  The  maxim  is  also  in  part  based  on 
the  consideration  that,  where  the  management  and  control  of  the  thing 
which  has  produced  the  injury  is  exclusively  vested  in  the  defendant, 
it  is  within  his  power  to  produce  evidence  of  the  actual  cause  that  pro- 
duced the  accident,  which  the  plaintiff  is  unable  to  present.  Neither 
of  these  rules — that  a  fact  may  be  proved  by  circumstantial  evidence 
as  well  as  by  direct,  and  that  where  the  defendant  has  knowledge  of 
a  fact  but  slight  evidence  is  requisite  to  shift  on  him  the  burden  of 
explanation — is  confined  to  any  particular  class  of  cases,  but  they  are 
general  rules  of  evidence  applicable  wherever  issues  of  fact  are  to  be 
determined  either  in  civil  or  criminal  actions.  In  a  prosecution  for 
selling  liquor  without  license,  it  is  sufficient  for  the  people  to  show 
the  sale,  leaving  the  defendant  to  show  his  license,  if  he  has  one.  Pot- 
ter v.  Deyo,  19  Wend.  361.  Recent  possession  of  stolen  goods  war- 
rants the  inference  that  the  possessor  is  the  thief,  both  because  ex- 
perience shows  that  usually  the  party  so  in  possession  is  the  thief,  and 
because  the  knowledge  of  how  he  came  into  possession  of  the  goods 
is  generally  exclusively  his  own.  In  Breen  v.  Railroad  Co.,  109  N.  Y. 
297,  16  N.  E.  60,  4  Am.  St.  Rep.  450,  it  is  said:  "There  must  be 
reasonable  evidence  of  negligence ;  but  when  the  thing  causing  the  in* 
jury  is  shown  to  be  under  the  control  of  a  defendant,  and  the  acci- 


STANDARD  OF   CARE  339 

dent  is  such  as,  in  the  ordinary  course  of  business,  does  not  happen 
if  reasonable  care  is  used,  it  does,  in  the  absence  of  explanation  by  the 
defendant,  afford  sufficient  evidence  that  the  accident  arose  from  want 
of  care  on  its  part."  I  can  see  no  reason  why  the  rule  thus  declared 
is  not  applicable  to  all  cases,  or  why  the  probative  force  of  the  evidence 
depends  on  the  relation  of  the  parties.  Of  course,  the  relation  of  the 
parties  may  determine  the  fact  to  be  proved,  whether  it  be  the  want  of 
the  highest  care  or  only  want  of  ordinary  care ;  and,  doubtless,  circum- 
stantial evidence,  like  direct  evidence,  -may  be  insufficient  as  a  matter  of 
law  to  establish  the  want  of  ordinary  care,  though  sufficient  to  prove 
absence  of  the  highest  degree  of  diligence.  But  the  question  in  every 
case  is  the  same  whether  the  circumstances  surrounding  the  occurrence 
are  such  as  to  justify  the  jury  in  inferring  the  fact  in  issue.  In  Mullen 
v.  St.  John,  57  N.  Y.  567,  15  Am.  Rep.  530,  it  was  held  that  the  falling 
of  an  adjacent  building  into  the  street,  whereby  the  plaintiff,  traveling 
on  the  street,  was  injured,  was  prima  facie  evidence  of  negligence.  In 
Piehl  v.  Railway  Co.,  30  App.  Div.  166,  51  N.  Y.  Supp.  755,  affirmed  in 
162  N.  Y.  617,  57  N.  E.  1122,  a  flywheel  was  disrupted,  and  a  portion 
of  it  cast  across  the  street  into  a  saloon  killing  the  plaintiff's  intestate. 
It  was  held  that  the  mere  bursting  of  the  flywheel  was  not  sufficient 
to  warrant  an  inference  of  negligence.  These  two  cases  proceeded 
on  the  differing  views  that  this  court  took  as  to  the  nature  of  the 
respective  accidents,  not  on  the  situation  of  the  parties.  I  think  it  may 
be  safely  said  that  we  would  not  have  held  the  defendant  liable  in 
the  latter  case  had  Piehl  been  killed  in  the  street,  or,  in  the  earlier 
case,  the  defendant  exempt,  had  the  plaintiff  been  injured  while  in 
a  neighboring  building.  To  put  it  tersely,  the  court  thought  that,  in 
the  absence  of  tempest  or  external  violence,  a  building  does  not  ordi- 
narily fall  without  negligence;  while  it  also  thought  that  the  disrup- 
tion of  a  flywheel  proceeds  so  often  from  causes  which  science  has 
been  unable  to  discover,  or  against  which  art  cannot  guard,  that  neg- 
ligence cannot  be  inferred  from  the  occurrence  alone.  Authority 
is  not  wanting  on  the  point.  In  Green  v.  Banta,  48  N.  Y.  Super.  Ct. 
156,  a  workman  was  injured  by  the  breaking  down  of  a  scaffold.  In 
a  suit  against  his  master  the  court  charged :  "The  fact  that  the  scaffold 
gave  way  is  some  evidence — it  is  what  might  be  called  prima  facie 
evidence — of  negligence  on  the  part  of  the  person  or  persons  who 
were  bound  to  provide  a  safe  and  proper  scaffold."  This  charge  was 
held  correct  by  the  general  term  of  the  superior  court  of  the  city  of 
New  York,  and  the  decision  affirmed  by  this  court,  97  N.  Y.  627.  In 
Mulcairns  v.  City  of  Janesville,  67  Wis.  24,  29  N.  W.  565,  the  fall  of 
a  wall  was  held  presumptive  evidence  of  negligence  in  a  suit  by  a 
servant  against  his  master.  In  Smith  v.  Gaslight  Co.,  129  Mass.  318, 
it  was  held  that  the  escape  of  gas  from  the  pipes  of  a  gas  company 
was  prima  facie  evidence  of  negligence.  In  that  case  there  seems  to 
have  been  no  contractual  relations  whatever  between  the  parties.  In 


340  NEGLIGENCE 

Peck  v.  Railroad  Co.,  165  N.  Y.  347,  59  N.  E.  206,  which  was  an 
action  for  injury  to  plaintiff's  property  by  fire,  it  was  said:  "But, 
while  it  was  necessary  for  the  plaintiff  to  affirmatively  establish  neg- 
ligence on  the  part  of  the  defendant,  either  in  the  condition  or  in 
the  operation  of  its  engine,  for  which  the  mere  occurrence  of  the 
fire  was  not  sufficient,  it  was  not  necessary  that  he  should  prove  either 
the  specific  defect  in  the  engine  or  the  particular  act  of  misconduct  in 
its  management  or  operation  constituting  the  negligence  causing  the 
injury  complained  of.  It  was  sufficient  if  he  proved  facts  and  circum- 
stances from  which  the  jury  might  fairly  infer  that  the  engine  was 
either  defective  in  its  condition  or  negligently  operated."  This  is  the 
principle  which  underlies  the  maxim  of  res  ipsa  loquitur.  When  the 
facts  and  circumstances  from  which  the  jury  is  asked  to  infer  neg- 
ligence are  those  immediately  attendant  on  the  occurrence,  we  speak 
of  it  as  a  case  of  res  ipsa  loquitur;  when  not  immediately  connected 
with  the  occurrence,  then  it  is  an  ordinary  case  of  circumstantial  evi- 
dence. In  Benedick  v.  Potts,  88  Md.  52,  40  Atl.  1067,  41  L.  R.  A.  478, 
it  is  said:  "In  no  instance  can  the  bare  fact  that  an  injury  has  hap- 
pened, of  itself  and  divorced  from  all  the  surrounding  circumstances, 
justify  the  inference  that  the  injury  was  caused  by  negligence.  It  is 
true  that  direct  proof  of  negligence  is  not  necessary.  Like  any  other 
fact,  negligence  may  be  established  by  the  proof  of  circumstances  from 
which  its  existence  may  be  inferred.  *  *  *  This  phrase  [res  ipsa 
loquitur],  which,  literally  translated,  means  that  'the  thing  speaks  for 
itself/  is  merely  a  short  way  of  saying  that  the  circumstances  attend- 
ant upon  an  accident  are  themselves  of  such  a  character  as  to  justify 
a  jury  in  inferring  negligence  as  the  cause  of  that  accident." 

Returning  now  to  the  case  before  us,  it  appears  that  the  deceased 
was  present  by  the  implied  invitation  of  the  defendant,  extended  to 
him  and  all  others  who  might  have  lawful  business  on  the  premises, 
to  use  the  elevator  as  a  means  of  proceeding  from  one  story  to  another. 
The  defendant,  therefore,  owed  the  plaintiff  the  duty  of  using  at 
least  reasonable  care  in  seeing  that  the  premises  were  safe.  The  death 
of  the  plaintiff's  intestate  was  caused  by  the  fall  of  the  counterbalance 
weights.  These  weights  were  held  in  a  frame,  to  which  was  at- 
tached a  rope  or  cable  passing  around  a  drum.  The  weights  fell 
down  from  the  frame,  and  the  rope  was  thrown  off  the  drum.  That 
no  such  accident  could  ordinarily  have  occurred,  had  the  elevator 
machinery  been  in  proper  condition  and  properly  operated,  seems  to 
me  very  plain.  The  court  was,  therefore,  justified  in  permitting  the 
jury  to  infer  negligence  from  the  accident;  construing,  as  I  do,  the 
term  "accident"  to  include  not  only  the  injury,  but  the  attendant  cir- 
cumstances. 

The  next  exception  of  the  appellant  relates  to  the  degree  of  care 
which  the  learned  trial  court  instructed  the  jury  the  defendant  was 
bound  to  exercise.  The  court  charged:  "As  to  the  machinery  and 


STANDARD  OF  CARE  341 

appliances  by  which  an  elevator  is  moved  and  controlled  in  its  ascent 
and  descent,  an  owner  is  bound  to  use  the  utmost  care  as  to  any 
defect  which  would  be  liable  to  occasion  great  danger  or  loss  of  life, 
and  he  is  in  that  respect  subject  to  the  same  rule  that  applies  to  a  rail- 
road company  in  regard  to  its  roadbed,  engine,  and  other  similar  ma- 
chinery. Now,  the  rule  that  is  applicable  to  a  railroad  company,  as 
to  its  roadbed,  engine,  and  machinery,  is  that  they  are  bound  to  ex- 
ercise the  utmost  care  and  diligence,  and  are  liable  for  the  slightest 
neglect  against  which  human  prudence  and  foresight  might  have 
guarded."  This  instruction  is  sustained  by  the  decision  of  the  Supreme 
Court  of  California  in  Treadwell  v.  Whittier,  80  Cal.  574,  22  Pac. 
266,  5  L.  R.  A.  498,  13  Am.  St.  Rep.  175.  In  McGrell  v.  Building 
Co.,  153  N.  Y.  265,  47  N.  E.  305,  the  question  was  discussed  by 
counsel,  but  not  passed  upon  by  the  court  in  its  disposition  of  the 
case.  In  determining  the  correctness  of  the  rule  of  liability  laid  down 
by  the  trial  court,  the  relation  of  the  parties,  which  I  think  not  con- 
trolling on  the  application  of  the  maxim  res  ipsa  loquitur,  is  of  vital 
importance.  Doubtless  no  distinction  can  be  drawn  between  ver- 
tical transportation  and  horizontal  transportation,  or  transportation 
along  the  surface  of  the  earth.  If  the  relationship  between  the  parties 
and  the  character  of  the  carrier  are  the  same  in  both  cases,  there  is 
no  reason  why  the  same  measure  of  diligence  should  not  be  exacted 
in  one  case  as  in  the  other.  But  the  defendant  was  not  a  common  car- 
rier, and  received  no  compensation,  at  least  directly,  for  carrying  per- 
sons from  one  floor  to  another.  The  right  of  any  person  to  be  car- 
ried in  the  elevator  was  based  on  the  implied  invitation  to  enter,  which 
the  defendant,  as  owner  of  the  property,  is  deemed  to  have  extended 
to  all  who  might  have  business  on  the  premises.  To  such  persons 
the  law  imposed  upon  the  occupant  or  owner  the  duty  of  seeing  that 
the  premises  were  in  a  reasonably  safe  condition  for  access  and  en- 
tering. 2  Shear.  &  R.  Neg.  §  704 ;  Beck  v.  Carter,  68  N.  Y.  283,  23 
Am.  Rep.  175.  But  "the  measure  of  his  duty  was  reasonable,  prudence 
and  care."  Larkin  v.  O'Neill,  119  N.  Y.  221,  23  N.  E.  563;  Hart  v. 
Grennell,  122  N.  Y.  371,  25  N.  E.  354.  If  the  charge  of  the  trial 
court  is  to  be  sustained,  we  must  hold  that  the  maintenance  and  opera- 
tion of  an  elevator  form  an  exception  to  the  general  standard  of  care 
imposed  by  the  law  upon  the  owners  and  occupants  of  real  property. 
We  see  no  reason  for  making  this  exception.  The  operation  of  an 
elevator,  no  doubt,  involves  danger,  and,  if  accident  occurs,  it  may 
result  in  most  serious  consequences.  It  is  not,  however,  the  only  dan- 
gerous appliance  used  in  modern  buildings.  The  boiler  which  fur- 
nishes steam  heat,  the  conductors  through  which  electric  light  is  fur- 
nished, may  at  times  be  the  cause  of  serious  accidents.  An  open  hatch- 
way is  equally  dangerous.  Yet  it  has  never  been  attempted  to  impose 
upon  the  owner  of  a  building  any  greater  responsibility  as  to  these 
matters  than  that  of  exercising  reasonable  care.  It  is  very  probable 


342  NEGLIGENCE 

that,  in  the  advance  of  mechanical  arts,  many  new  appliances  will  be 
introduced  into  buildings  which  will  involve  danger.  It  seems  to  me 
impracticable  to  distinguish  as  to  the  measure  of  •  the  owner's  duty 
between  these  appliances,  and  that  such  an  attempt  would  involve 
great  confusion  in  the  law.  I  do  not  wish  to  be  misunderstood.  In 
the  exercise  of  the  same  degree  of  care,  different  degrees  of  precau- 
tion may  be  necessary.  The  same  man,  with  equal  prudence,  will 
leave  an  article  of  furniture  unguarded  in  his  house,  and  carefully  se- 
crete or  lock  up  jewelry  or  money.  So,  the  more  dangerous  an  ap- 
pliance may  be,  the  more  attention  may  be  requisite.  If  the  fair  pur- 
port of  the  charge  of  the  court  was  only  that  the  care  should  be  com- 
mensurate with  the  danger,  it  might  not  be  objectionable.  The  charge, 
however,  goes  far  beyond  this.  The  utmost  human  care  and  foresight 
would  require  the  owner  of  a  building  to  use  the  most  modern  and  im- 
proved form  of  elevator,  the  latest  successful  mechanical  device,  and 
the  most  skillful  operators.  Such  is  the  rule  in  the  operation  of  rail- 
roads, and  this  degree  of  diligence  may  well  be  required  where,  for  a 
consideration,  there  is  a  contract  to  carry  safely.  But  common  knowl- 
edge informs  us  that  such  a  rule  would  be  unreasonable,  applied  to 
elevators  in  ordinary  buildings.  There  are  elevators  not  only  in  great 
office  buildings  and  hotels,  but  also  in  small  buildings,  and  even  in 
many  private  houses.  Where  there  is  little  traffic  the  duty  of  operat- 
ing the  elevator  is  at  times,  imposed  on  an  employe  or  servant  with 
other  work  to  perform.  To  require  in  all  these  cases  (and  I  do  not 
see  how  it  is  possible  to  distinguish  between  them  on  the  law)  the 
same  measure  of  duty  that  is  imposed  on  a  railroad  company  or  com- 
mon carrier  would  be  going  too  far.  I  think  sufficient  security  is  af- 
forded the  public  when  owners  or  occupants  of  a  building  are  re- 
quired to  use  reasonable  care  in  the  character  of  the  appliance  they 
provide,  and  in  its  maintenance  and  operation.  The  stairways  are 
always  open  to  those  who  deem  this  degree  of  diligence  inadequate  for 
their  protection.  The  charge  of  the  learned  trial  court  was  therefore 
erroneous.  *  *  * 


HUGHES  v.  ATLANTIC  CITY  &  S.  R.  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1914.    85  N.  J.  Law,  212, 
89  Atl.  769,  L.  R.  A.  1916A,  927.) 

SWAYZE,  J.  The  plaintiff,  a  passenger  in  a  car  of  the  defendant,  was 
injured  by  fragments  of  glass  from  the  explosion  of  an  electric  light 
bulb  in  the  ceiling  of  the  car.  There  was  no  proof  of  the  cause  of  the 
explosion ;  the  plaintiff  went  no  further  than  to  testify  that  "probably 
it  was  a  weak  bulb,  and  the  voltage  might  have  run  up  on  it,  and  of 
course  it  had  a  tendency  to  burst  the  globe." 

The  learned  trial  judge,  in  view  of  the  high  degree  of  care  required 
of  a  carrier  of  passengers,  told  the  jury  that  "when  an  accident  of 


STANDARD   OF   CARE  343 

this  kind  happens  to  some  of  the  means  of  transportation,  the  law  shifts 
the  burden  of  proof  from  the  plaintiff  as  to  the  explanation  or  showing 
the  actual  cause  to  the  defendant,  and  imposes  upon  it  the  burden  of 
making  an  explanation  exculpating  itself  from  negligence."  The  ques- 
tion he  put  to  the  jury  was :  "Has  the  defendant  done  that?"  To  leave 
no  doubt  of  his  meaning  he  added :  "The  explanation  is  one  that  you 
must  pass  upon,  whether  or  not  the  burden  which  the  law  casts  upon 
the  defendant  in  a  case  of  injuries,  an  accident  of  this  kind,  has  been 
met.  If  it  has,  then  of  course  the  negligence  that  the  law  would  infer 
from  the  proof  of  the  facts  of  the  accident  and  the  nature  of  it  does 
not  exist,  and  the  company  would  not  be  answerable  at  all." 

The  effect  of  this  charge  was  to  relieve  the  plaintiff  from  the  duty 
to  satisfy  the  jury,  by  the  preponderance  of  the  evidence,  that  the  de- 
fendant had  been  negligent,  and  to  deprive  the  defendant  of  his  right, 
which  we  have  said  is  a  substantial  one,  to  have  the  plaintiff  bear  the 
burden  of  the  affirmative.  Bien  v.  Unger,  64  N.  J.  Law,  596,  46  Atl. 
593;  McGilvery  v.  Electric  Light  &  Power  Co.,  63  N.  J.  Law,  591, 
44  Atl.  637.  The  learned  trial  judge  distinctly  said  that  this  burden 
shifted  to  the  defendant,  and  he  did  not  even  submit  to  the  jury  the 
question  whether  the  plaintiff  had  established  negligence ;  he  treated 
that  as  a  matter  of  legal  inference,  and  only  left  to  the  jury  to  say 
whether  the  defendant  had  exculpated  itself.  He  thus  put  upon  the 
defendant,  in  a  case  where  there  was  no  direct  evidence  of  negligence,  a 
burden  from  which  it  would  have  been  free  in  a  case  where  there  was 
direct  evidence.  Instead  of  the  question  that  has  been  so  much  dis- 
cussed in  the  cases,  whether  negligence  may  be  inferred  from  the  mere 
fact  of  injury,  we  now  have  the  proposition  that  the  inference  of  neg- 
ligence is  so  strong  that  the  jury  need  not  consider  it  at  all,  but  need 
only  consider  whether  the  defendant  has  exculpated  himself. 

This  is  an  unwarranted  extension  of  the  application  of  the  maxim 
res  ipsa  loquitur.  The  importance  of  the  rule  which  finds  expression 
in  that  maxim  is  found  in  the  province  of  the  trial  judge,  and  not  in 
the  province  of  the  jury.  He  is  called  on  in  the  first  instance  to  say 
whether  there  is  any  evidence  of  negligence  to  go  to  the  jury;  in  the 
absence  of  direct  evidence  he  may,  in  cases  where  the  maxim  applies, 
hold  that  the  circumstances  are  such  as  will,  unexplained,  permit  the 
jury  to  draw  the  inference  of  negligence;  but  that  inference  is  still 
one  for  the  jury  and  not  for  the  court.  They  may  not  believe  the  wit- 
nesses ;  the  circumstances  may  be  such  that  the  jury  will  attribute  the 
injury  to  some  cause  with  which  the  defendant  has  nothing  to  do; 
they  may  find  the  inference  of  negligence  too  weak  to  persuade  their 
minds;  they  may  think  a  reasonably  prudent  man  would  have  been 
unable  to  take  precautions  to  avoid  the  injury;  and,  in  any  event,  they 
may  render  a  verdict  for  the  defendant.  This  is  within  their  province 
even  when  there  is  no  explanation  by  the  defendant.  When  there  is 
such  explanation,  it  is  for  the  jury  to  decide,  just  as  in  the  ordinary 


344  NEGLIGENCE 

case  of  whatever  kind,  what  the  actual  facts  are,  and  what  inference 
should  be  drawn  therefrom.  The  most  that  is  required  of  the  defend- 
ant is  explanation,  not  exculpation;  and  that  explanation  may  leave 
the  mind  in  equipoise,  in  which  case  the  defendant  would  be  entitled  to 
a  verdict  because  the  plaintiff  has  failed  to  prove  his  case  by  the 
weight  of  the  evidence. 

The  question  discussed  in  the  cases  that  involve  the  application  of 
the  maxim  res  ipsa  loquitur  has  always  been  whether  mere  proof  of 
the  injury  justified  a  jury  in  drawing  an  inference  of  negligence  30 
that  a  nonsuit  would  be  improper,  or,  in  other  words,  whether  it 
sufficed  to  prevent  a  nonsuit.  Negligence  in  such  a  case  may  be  a 
permissible  inference,  but  is  not  a  necessary  one,  as  the  judge's  charge 
treated  it.  In  the  first  case  in  which  the  maxim  was  discussed  in  this 
state,  Chief  Justice  Beasley,  who  dissented  because  he  thought  the 
plaintiff  had  made  out  a  case,  said  that  the  facts  as  proved  would  have 
legally  warranted  a  verdict  against  the  defendants,  but  he  did  not  sug- 
gest that,  in  the  absence  of  explanation,  such  a  verdict  would  have 
been  required,  and  the  court  would  have  been  justified  in  directing  a 
verdict  for  the  plaintiff.  The  reason  of  course  is  that  negligence  in 
such  a  case  is  only  a  matter  of  inference,  and  under  our  system  is  for 
the  jury. 

The  rule  has  been  stated  with  great  accuracy  by  Mr.  Justice  Dixon, 
speaking  for  this  court,  in  an  action  by  a  passenger  against  a  carrier. 
He  says:  "The  rule  supported  by  authority  is  that  when  a  passenger 
shows  that  he  was  injured  through  some  defect  in  the  appliances  of 
the  carrier,  or  through  some  act  or  omission  of  the  carrier's  servant, 
which  might  have  been  prevented  by  due  care,  then  the  jury  have  the 
right  to  infer  negligence,  unless  the  carrier  proves  that  due  care  was 
exercised."  Whalen  v.  Consolidated  Traction  Co.,  61  N.  J.  Law,  606, 
40  Atl.  645,  41  L.  R.  A.  836,  68  Am.  St.  Rep.  723.  In  Mumma  v. 
Easton  &  Amboy  R.  R.  Co.,  73  N.  J.  Law,  653,  65  Atl.  208,  we  again 
said  that  the  meaning  of  the  maxim  res  ipsa  loquitur  was  that  "the 
occurrence  itself,  in  the  absence  of  explanation  by  the  defendant, 
affords  prima  facie  evidence  that  there  was  want  of  due  care."  It  is 
evidence;  whether  it  amounts  to  proof  is  for  the  jury  to  say,  even  in 
the  absence  of  explanation  by  the  defendant.  A  very  good  statement 
of  the  law  in  a  case  much  like  the  present  is  to  be  found  in  White 
v.  Boston  &  Albany  R.  R.,  144  Mass.  404,  11  N.  E.  552.  The  court 
said:  "If  the  shade  was  defective  and  unsafe,  the  question  whether 
it  was  in  that  condition  through  the  negligence  of  the  defendant  would 
be  for  the  jury;  and  the  fact  that  it  broke  and  fell  from  the  use  for 
which  it  was  intended  would  be  evidence  that  it  was  defective  and  un- 
safe, and,  if  not  explained  or  controlled,  would  be  sufficient  evidence 
to  authorize  the  jury  to  find  that  the  defendant  was  negligent  in  regard 
to  it."  This  is  a  full  recognition  of  the  ordinary  rule  that  inferences 
from  the  facts  of  the  case  are  for  the  jury.  The  result  we  reach  is 


STANDARD  OF  CAEE  345 

• 

also  sustained  by  a  recent  opinion  of  Mr.  Justice  Pitney  in  the  United 
States  Supreme  Court,  Sweeney  v.  Erving,  228  U.  S.  233,  33  Sup.  Ct. 
416,  57  L.  Ed.  815,  Ann.  Cas.  1914D,  905. 

The  inference  of  negligence  from  the  mere  happening  of  the  acci- 
dent may  be  a  legal  inference  in  the  sense  that  it  is  permitted  by  the 
law,  but  it  is  not  a  legal  inference  in  the  sense  that  it  is  required.  It 
is  true  that  in  some  cases  language  may  be  found  to  the  effect  that, 
under  certain  circumstances,  the  burden  of  proof  shifts,  while  other 
cases  declare  quite  as  explicitly  that  the  burden  of  proof  never  shifts. 
The  seeming  conflict  arises  from  the  ambiguous  meaning  of  the  words 
"burden  of  proof"  as  applied  to  jury  trials.  This  ambiguity  is  dealt 
with  by  Thayer  in  two  of  the  most  enlightening  chapters  of  a  most  en- 
lightening book,  well  said  by  Wigmore  to  be  epoch-making,  Prelim- 
inary Treatise  on  Evidence,  353,  and  by  Wigmore,  with  a  somewhat 
different  form  of  statement  and  ample  citation  of  authorities,  Wigmore 
on  Evidence,  §  2483  and  the  following.  In  one  sense  "burden  of 
proof"  means  the  duty  of  the  actor,  i.  e.,  the  party  having  the  affirma- 
tion of  the  issue  to  establish  the  proposition  at  the  end  of  the  case. 
In  this  sense  the  burden  never  shifts.  The  distinction  is  pointed  out  in 
a  case  cited  by  Thayer,  of  an  action  to  recover  damages  for  injury 
caused  by  the  explosion  of  a  boiler  of  a  steamboat  in  which  the  plain- 
tiff was  a  passenger.  Caldwell  v.  New  Jersey  Co.,  47  N.  Y.  282,  290. 
In  a  second  sense  the  expression  means  the  duty  of  going  forward  in 
argument,  or  in  producing  evidence,  and  in  this  sense  the  burden  may 
shift  according  as  one  side  or  the  other  has  satisfied  the  judge  that 
the  evidence  suffices  to  make  a  prima  facie  case  in  his  favor.  The 
practical  distinction  is  well  stated  by  Wigmore,  and  it  is,  as  he  says, 
important:  "The  risk  of  nonpersuasion  operates  when  the  case  has 
come  into  the  hands  of  the  jury,  while  the  duty  of  producing  evidence 
implies  a  liability  to  a  ruling  by  the  judge,  disposing  of  the  issue, 
without  leaving  the  question  open  to  the  jury's  deliberations."  Wig- 
more,  §  2487.  In  applying  the  law  to  a  case  like  the  present,  we 
think  it  clear  that  the  plaintiff  was  bound  to  satisfy  the  jury,  by  the 
preponderance  of  evidence,  that  the  defendant  was  guilty  of  negligence 
that  caused  the  accident ;  if  he  introduced  no  evidence,  or  no  evidence 
from  which  an  inference  of  negligence  could  be  drawn,  it  would  be 
the  duty  of  the  judge  to  direct  a  verdict  for  the  defendant;  if  he  in- 
troduced evidence  which  permitted  or  required  an  inference  of  neg- 
ligence, it  would  be  for  the  jury  to  say  whether  they  believed  the  wit- 
nesses, and,  where  an  inference  of  negligence  was  permissible  but  not 
required,  whether  they  drew  that  inference.  The  mere  occurrence  of 
the  present  injury  did  not  require  a  finding  of  negligence,  since  the 
bulb  may  have  burst  from  some  cause  beyond  the  defendant's  control. 
When  the  judge  said  that  the  burden  shifted,  the  context  shows  that 
he  meant  the  duty  of  persuasion  upon  the  whole  case.  In  no  other 


346  NEGLIGENCE 

sense  was  the  jury  concerned  with  burden  of  proof.  He  thereby  im- 
posed upon  the  defendant  a  duty  that  the  law  imposes  on  the  plaintiff. 
For  the  failure  to  submit  to  the  jury  the  question  of  defendant's 
negligence  upon  the  whole  case,  the  judgment  must  be  reversed,  to 
the  end  that  a  venire  de  novo  may  issue. 


V.  Damage 


BLATE  v.  THIRD  AVE.  R.  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  First  Department,  1899. 
44  App.  Div.  163,  60  N.  Y.  Supp.  732.) 

RUMSEY,  J.18  *  *  *  Great  stress  is  laid  to  the  charge  of  the 
learned  trial  justice  on  the'question  of  damages.  The  facts  were  that, 
as  a  result  of  the  collision,  the  plaintiff  suffered  a  rupture  in  the 
groin,  which  caused  him,  as  the  jury  have  found,  considerable  incon- 
venience, and  no  little  pain,  and  was,  at  the  time  of  the  trial,  growing 
worse.  It  is  quite  evident  that  the  damages  which  were  given  by  the 
jury  were  based  in  a  very  considerable  amount  upon  this  rupture.  The 
evidence  of  surgeons  was  given,  not  only  as  to  the  existence  of  the 
rupture  as  the  result  of  this  accident,  but  also  as  to  the  probability 
of  its  cure  if  the  plaintiff  would  submit  to  a  surgical  operation.  The 
defendant's  expert  testified  that  such  an  operation  would  almost  cer- 
tainly result  in  a  cure;  but  the  physicians  sworn  on  behalf  of  the 
plaintiff,  while  admitting  that  such  an  operation  would  probably  re- 
sult in  a  cure,  said  that  it  was  by  no  means  certain.  It  was  stated  by 
the  plaintiff's  witnesses  that  such  an  operation  would  be  dangerous  to 
life,  but  the  expert  surgeon  sworn  on  behalf  of  the  defendant  said 
it  was  not  now  really  dangerous  to  life,  although  six  or  eight  years 
ago  it  was  considered  a  dangerous  operation.  In  view  of  that  condi- 
tion of  the  evidence,  the  defendant  insisted  that  it  was  the  duty  of 
the  plaintiff  to  submit  to  an  operation,  which  would  be  practically  cer- 
tain to  result  in  a  cure;  and  because  he  did  not  do  so  he  was  not  en- 
titled to  recover  damages  for  a  permanent  or  continuing  rupture.  On 
that  branch  of  the  case  the  learned  trial  justice  charged  the  jury: 
"Something  has  been  said  to  you  regarding  the  possibility  of  the 
plaintiff  having  had  a  radical  cure  effected  by  submitting  himself  to 
a  surgical  operation.  I  charge  you,  upon  that  subject,  that  a  person 
who  has  been  injured  by  an  accident  of  this  kind  is  bound  to  use  the 
usual  and  reasonable  remedies  which  are  appropriate  to  alleviate  or 
cure  such  an  accident  as  he  has  suffered.  He  is  not  permitted  to  in- 
crease and  enhance  the  damages  which  he  has  suffered  by  negligently, 

IT  For  discussion  of  principles,  see  Chapin  on  Torts,  §  112. 
is  A  portion  of  the  opinion  is  omitted. 


DAMAGE  347 

or  carelessly,  or  willfully  permitting  his  condition  to  get  worse  than 
it  would  be  if  properly  treated.  At  the  same  time  no  man  is  bound, 
for  the  purpose  of  reducing  the  amount  of  damages  which  he  may  be 
entitled  to  recover  from  a  person  who  has  done  him  wrong, — no  man 
is  bound  to  submit  himself  to  a  surgical  operation  which  may,  even 
in  the  remotest  degree,  be  an  operation  attended  with  danger.  That 
is  a  matter  which  he  must  determine  for  himself ;  and  if  he,  through 
apprehension,  or  for  any  other  cause,  has  determined  that  he  will  not 
submit  himself  to  such  an  operation,  the  defendant  is  not  entitled  to 
take  advantage  of  his  failure  to  do  so.  At  the  same  time  you  are  to 
take  into  consideration,  determining  the  amount  of  injury  which  this 
man  has  suffered,  and  the  permanency  of  his  injury,  all  the  testimony 
that  you  have  heard  from  the  experts  upon  the  subject  of  the  pos- 
sibility of  curing  a  disease  of  this  kind  by  a  surgical  operation,  and 
the  slight  inconvenience  which  is  said  to  result  from  such  operation  in 
most  cases." 

To  this  charge  as  an  entirety  an  exception  was  taken.  Counsel  for 
the  defendant  insists  that  the  charge  was  erroneous,  but  he  made  no 
request  to  the  court  to  modify  it,  or  to  charge  more  fully  upon  any 
proposition  contained  in  it;  so  that,  if  the  propositions  charged  are 
correct,  defendant  cannot  complain  that  the  court  should  have  charged 
more  fully  in  regard  to  them.  The  rule  of  damages  in  such  cases  is 
not  at  all  doubtful.  It  is  that  the  party  who  claims  to  have  suffered 
damage  by  the  tort  of  another  party  is  bound  to  use  reasonable  and 
proper  efforts  to  make  the  damage  as  small  as  practicable,  and  that  he 
is  not  entitled  to  recover  for  any  damage  which,  by  the  use  of  such 
efforts,  might  have  been  avoided,  because  they  are  not  to  be  regarded 
as  the  natural  result  of  the  tort.  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  605. 
The  question  in  every  case  is  whether  the  plaintiff  has  used  such  means 
as  were  at  hand  to  reduce  his  damages  as  a  reasonably  prudent  man 
would  have  used.  It  cannot  be  said  as  a  matter  of  law  that  he  is  bound 
to  use  any  particular  means,  or  to  do  any  particular  thing  (unless  that 
thing  is  one  which  would  necessarily  result  in  reducing  the  damage,  and 
which  a  reasonable  and  prudent  man  would  use).  If,  in  any  given  case, 
it  appears  that  the  particular  means  which  may  be  used  to  effect  a 
cure  would  or  might  cause  greater  injury,  or  produce  serious  results, 
quite  clearly  the  injured  person  would  not  be  called  upon  as  a  matter 
of  law  to  take  the  chances  of  suffering  more  serious  injury,  or  death, 
for  the  purpose  of  reducing  the  damage.  While  the  person  who  inflicts 
the  damage  has  the  right  to  say  that  sure  and  safe  means  to  diminish 
the  evil  results  of  the  accident,  if  any  such  exist,  must  be  used,  yet 
that  is  the  extent  of  his  right.  Whether  further  means  should  be  re- 
sorted to  is  for  the  plaintiff  to  determine.  In  making  that  determina- 
tion the  plaintiff  has  the  right  to  consider  the  nature  of  the  means  used 
to  effect  a  cure,  and  a  possible  or  probable  effect  upon  himself.  He 
has  to  determine  for  himself  whether  he  is  to  resort  to  those  means 


348  NEGLIGENCE 

in  view  of  those  considerations.  In  any  given  case  it  may  be  that 
the  treatment  which  is  given  to  the  plaintiff  is  not  the  best  that  could 
be  devised,  but  the  plaintiff  is  not  the  less  entitled  to  his  damages  on 
that  account  if,  in  taking  that  treatment,  he  has  consulted  such  a 
physician  as  a  reasonably  prudent  man  would  consult.  The  jury,  in 
getting  at  the  damages,  are  to  say  not  only  what  they  are,  but  whether 
the  means  used  by  the  plaintiff  to  reduce  the  damages  were  such  as 
an  ordinarily  prudent  man  would  use.  They  cannot  say  that  he  should 
or  should  not  have  taken  the  advice  of  any  particular  physician,  nor 
that  he  should  have  obtained  any  particular  kind  of  treatment.  As  to 
that  he  must  himself  be  the  judge.  But  when  he  has  determined  what 
treatment  to  take,  it  will  yet  be  for  the  jury  to  say  if,  in  making  that 
determination,  he  used  the  means  that  a  reasonably  prudent  man 
would  take  to  cure  himself  of  his  injury.  If  he  did,  he  is  entitled 
to  recover  for  his  damages  as  they  are  presented  to  the  jury.  If 
he  did  not,  and  the  jury  can  say  that  some  other  treatment  would 
have  brought  about  a  cure,  and  that  treatment  was  one  that  a  rea- 
sonably prudent  man  would  have  submitted  to,  then  they  must  say 
that  he  has  not  used  the  care  which  a  reasonably  prudent  man  would 
use  to  reduce  the  damages,  and  must  take  that  into  consideration  in 
reaching  their  verdict.  That  is  what  was  substantially  .said  to  them 
by  the  learned  trial  justice.  The  law  lays  down  no  hard  and  fast  rule 
as  to  the  duty  of  the  plaintiff  under  such  circumstances.  Whether 
an  operation  for  his  ailment,  which  might  endanger  his  life  in  any 
degree,  must  be  submitted  to,  is  a  question  which  the  law  cannot  an- 
swer; nor  does  it  lie  in  the  mouth  of  a  jury  to  say  that  the  plaintiff 
should  or  should  not  do  any  particular  thing.  They  are  concerned 
simply  with  the  affairs  presented  to  them  at  the  trial,  and  whether 
the  damages  then  appearing  to  exist  are  the  natural  and  probable 
result  of  the  injuries,  diminished  by  the  efforts  for  a  cure  which  a 
reasonably  prudent  man  would  have  made.  This  is  substantially 
what  was  said  by  the  learned  trial  justice,  and  with  this  statement  of 
the  law  we  are  content.  If  the  jury  concluded — as  they  might — that 
the  serious  injuries  which  the  plaintiff  received  were  the  natural  and 
probable  result  of  this  injury  tested  by  these  rules,  they  were  quite 
justified  in  giving  him  a  verdict  for  the  amount  which  they  did,  and 
the  damages  were  not  excessive. 

The  judgment  and  order  must  therefore  be  affirmed,  with  costs. 
All  concur. 


CONTRIBUTORY   NEGLIGENCE  349 

VI.  Contributory  Negligence 
1,  COMMON-LAW  RULE  18 


TEMPLETON'S  ADM'R  v.  LYNCHBURG  TRACTION  & 
.  LIGHT  CO. 

(Supreme  Court  of  Appeals  of  Virginia,  1910.    110  Va.  853,  67  S.  E.  351.) 

HARRISON,  J.  This  action  was  brought  by  the  administrator  of 
Charles  R.  Templeton  to  recover  of  the  Lynchburg  Traction  &  Light 
Company  damages  for  its  alleged  negligence  in  causing  the  death  of 
the  plaintiff's  intestate.  There  was  a  demurrer  to  the  plaintiff's  evi- 
dence, which  was  sustained,  and  judgment  given  for  the  defendant. 
This  judgment  we  are  asked  to  review  and  reverse. 

Upon  consideration  of  the  evidence  it  is  difficult  to  see  wherein  the 
defendant  company  has  been  guilty  of  any  negligence  that  was  proxi- 
mately  the  cause  of  the  injury  which  resulted  in  the  death  of  the  plain- 
tiff's intestate.  If,  however,  the  negligence  of  the  defendant  company 
was  established,  it  would  be  under  no  liability  to  the  plaintiff,  because 
his  intestate  is  shown  to  have  been  guilty  of  such  contributory  negli- 
gence as  to  preclude  all  right  of  recovery  by  him. 

The  law  will  not  weigh  or  apportion  the  concurring  negligence  of  a 
plaintiff  and  defendant.  There  can  be  no  recovery  by  a  plaintiff  who 
has  been  guilty  of  contributory  negligence.  Clinchfield  Coal  Co.  v. 
Wheeler,  108  Va.  448,  62  S.  E.  269. 

At  the  time  of  his  death  the  plaintiff's  intestate  was  working  for 
the  Bell  Telephone  Company ;  his  business  being  to  locate  and  remedy 
contacts  between  the  wires  of  his  employer  and  those  of  other  com- 
panies, to  disengage,  disentangle,  and  separate  such  wires,  etc.  He 
had  been  for  some  time  engaged  in  this  character  of  work  all  over 
the  city  of  Lynchburg,  and  it  abundantly  appears  that  he  was  thor- 
oughly acquainted  with  the  great  danger  to  which  he  was  constantly 
exposed,  and  fully  advised  of  the  necessity  for  constant  care  and  vigi- 
lance on  his  part  to  avoid  coming  in  contact  with  the  wires  about  which 
he  worked.  On  the  day  of  the  accident,  the  gang  of  linemen  of  which 
deceased  was  a  member  assembled  for  the  purpose  of  taking  down  an 
old  cable  of  the  telephone  company.  This  cable  was  in  the  vicinity  of 
other  wires,  the  highest  of  which  was  the  heavily  charged  wire  of  the 
defendant  traction  company.  In  addition  to  his  general  knowledge  of 
the  danger,  the  deceased  was  specially  warned  of  the  hazardous  char- 
acter of  the  work  he  was  doing  when  he  lost  his  life.  As  the  deceased 
and  others  were  about  to  ascend  the  poles,  the  foreman  told  them  of 

i »  For  discussion  of  principles,  see  Chapin  on  Torts,  §  113. 


350  NEGLIGENCE 

the  unusual  danger,  and  that  they  must  look  out  for  the  2,300-volt 
wires  under  them  and  the  13,000-volt  wires  above  them,  and  not  to 
touch  either;  that  they  would  be  killed  if  they  did.  At  the  time  of 
the  accident  the  deceased  was  bending  over  tying  a  "traveling  block"' 
to  the  cross-arm  of  the  telephone  company's  pole,  and  while  thus  en- 
gaged a  fellow  workman,  who  was  on  another  pole  near  him,  noticing 
that  deceased  was  dangerously  near  the  13,000-volt  wire,  called  out 
to  him,  saying :  "Look  out  there !  If  you  straighten  up  and  touch  them 
wires  you  will  be  a  goner."  The  witness  says  that  when  this  warning 
was  given  the  deceased  looked  at  him  and  smiled,  and  turned  his  head 
around  and  looked  up  at  the  wires  to  which  he  had  referred ;  that  he 
thought  surely  he  was  not  going  to  straighten  up  then.  In  about  a 
minute  after  this  last  warning  was  given  the  deceased  raised  up  and 
came  in  contact  with  the  13,000-volt  wire  of  the  defendant  company, 
and  immediately  fell  lifeless  to  the  ground.  The  evidence  shows  that 
the  wires  were  far  enough  apart  for  the  work  in  hand  to  have  been 
done  with  safety  by  the  exercise  of  reasonable  care,  and  that  deceased 
lost  his  life  solely  as  a  result  of  his  own  imprudence  and  lack  of 
caution. 

There  can  be  no  recovery  in  such  a  case,  and  the  judgment  must  be 
affirmed. 

Affirmed. 


2.  RULE  IN  ADMIRALTY  20 


THE  MAX  MORRIS. 

(Supreme  Court  of  the  United  States,  1890.     137  U.  S.  1,  11  Sup.  Ct  29, 

34  L.  Ed.  586. 

This  was  a  suit  in  admiralty,  brought  in  the  District  Court  of  the 
United  States  for  the  Southern  District  of  New  York,  by  Patrick  Cur- 
ry against  the  steamer  Max  Morris. 

The  libel  alleged  that  on  the  27th  of  October,  1884,  the  libelant 
was  lawfully  on  board  of  that  vessel,  being  employed  to  load  coal 
upon  her  by  the  stevedore  who  had  the  contract  for  loading  the  coal ; 
that,  on  that  day,  the  libelant,  while  on  the  vessel,  fell  from  her 
bridge  to  the  deck,  through  the  negligence  of  those  in  charge  of 
her,  in  having  removed  from  the  bridge  the  ladder  usually  leading 
therefrom  to  the  deck,  and  in  leaving  open,  and  failing  to  guard, 
the  aperture  thus  left  in  the  rail  on  the  bridge;  that  the  libelant  was 
not  guilty  of  negligence;  and  that  he  was  injured  by  the  fall  and  in- 
capacitated from  labor.  He  claimed  $3,000  damages. 

20  For  discussion  of  principles,  see  Chapin  on  Torts,  §  113. 


CONTRIBUTORY  NEGLIGENCE  351 

The  answer  alleged  negligence  on  the  part  of  the  libelant  and  an 
absence  of  negligence  on  the  part  of  the  claimant. 

The  District  Court,  held  by  Judge  Brown,  entered  a  decree  in  fa- 
vor of  the  libelant  for  $150  damages,  and  $32.33  as  one-half  of  the 
libelant's  costs,  less  $47.06  as  one-half  of  the  claimant's  costs  making 
the  total  award  to  the  libelant  $135.27.  The  opinion  of  the  District 
Judge  is  reported  in  24  Fed.  860.  It  appeared  from  that  that  the 
judge  charged  to  the  libelant's  own  fault  all  his  pain  and  suffering1 
and  all  mere  consequential  damages,  and  charged  the  vessel  with  his 
wages,  at  $2  per  day,  for  seventy-five  working  days,  making  $150. 

The  claimant  appealed  to  the  Circuit  Court,  on  the  ground  that  the 
libel  should  have  been  dismissed.  It  was  stipulated  between  the 
parties  that  the  facts  as  stated  in  the  opinion  of  the  District  Judge 
should  be  taken  as  the  facts  proved  in  the  case,  and  that  the  appeals 
should  be  heard  on  those  facts.  Judge  Wallace,  who  heard  the  case 
on  appeal  in  the  Circuit  Court,  delivered  an  opinion,  in  August,  1886, 
which  is  reported  in  28  Fed.  881,  affirming  the  decree  of  the  District 
Court.  No  decree  was  made  on  that  decision,  but  the  case  came  up 
again  in  the  Circuit  Court  on  the  14th  of  March,  1887,  the  court  be- 
ing held  by  Mr.  Justice  Blatchford  and  Judge  Wallace,  when  a  cer- 
tificate was  signed  by  them  stating  as  follows:  "The  libelant  was  a 
longshoreman,  a  resident  of  the  city  and  county  of  New  York,  and 
was,  at  the  time  when  the  said  accident  occurred,  employed  as  long- 
shoreman, by  the  hour,  by  the  stevedore  having  the  contract  to  load 
coal  on  board  the  steamship  Max  Morris.  The  injuries  to  the  libel- 
ant were  occasioned  by  his  falling  through  an  unguarded  opening  in 
the  rail  on  the  after-end  of  the  lower  bridge.  The  Max  Morris  was 
a  British  steamship  hailing  from  Liverpool,  England.  The  defendant 
contends,  as  a  matter  of  defense  to  said  libel,  that  the  injuries  com- 
plained of  by  libelant  were  caused  by  his  own  negligence.  The  libelant 
contends  that  the  injuries  were  occasioned  entirely  through  the  fault 
of  the  vessel  and  her  officers.  The  court  finds,  as  a  matter  of  fact, 
that  the  injuries  to  the  libelant  were  occasioned  partly  through  his 
own  negligence,  and  partly  through  the  negligence  of  the  officers  of 
the  vessel.  It  now  occurs,  as  a  question  of  law,  whether  the  libelant, 
under  the  above  facts,  is  entitled  to  a  decree  for  divided  damages. 
On  this  question  the  opinions  of  the  judges  are  in  conflict."  On  mo- 
tion of  the  claimant,  the  question  in  difference  was  certified  to  this 
court,  and  a  decree  was  entered  by  the  Circuit  Court  affirming  the  de- 
cree of  the  District  Court  and  awarding  to  the  libelant  a  recovery  of 
$135.27,  with  interest  from  the  date  of  the  decree  of  the  District  Court, 
and  $26.30  as  the  libelant's  costs  in  the  Circuit  Court  making  a  total 
of  $172.  From  that  decree  the  claimant  has  appealed  to  this  court. 
Rev.  Stat.  §§  652,  693 ;  Dow  v.  Johnson,  100  U.  S.  158,  25  L.  Ed.  632, 


352  NEGLIGENCE 

Mr.  Justice  BLATCHFORD,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court.21 

The  question  discussed  in  the  opinions  of  Judge  Brown  and  Judge 
Wallace,  and  presented  to  us  for  decision,  is  whether  the  libelant  was 
debarred  from  the  recovery  of  any  sum  of  money  by  reason  of  the 
fact  that  his  own  negligence  contributed  to  the  accident,  although 
there  was  negligence  also  in  the  officers  of  the  vessel.  The  question 
presented  by  the  certificate  is  really  that  question,  although  stated  in 
the  certificate  to  be  whether  the  libelant,  under  the  facts  presented, 
was  entitled  to  a  decree  "for  divided  damages."  It  appears  from  the 
opinion  of  the  District  Judge  that  he  imposed  upon  the  claimant  "some 
part  of  the  damage"  which  his  concurrent  negligence  occasioned, 
while  it  does  not  appear  from  the  record  that  the  award  of  the  $150 
was  the  result  of  an  equal  division  of  the  damages  suffered  by  the 
libelant,  or  a  giving  to  him  of  exactly  one-half,  or  of  more  or  less 
than  one-half,  of  such  damages. 

The  particular  question  before  us  has  never  been  authoritatively 
passed  upon  by  this  court,  and  is,  as  stated  by  the  District  Judge  in 
his  opinion,  whether,  in  a  court  of  admiralty,  in  a  case  like  the  present, 
where  personal  injuries  to  the  libelant  arose  from  his  negligence 
concurring  with  that  of  the  vessel,  any  damages  can  be  awarded,  or 
whether  the  libel  must  be  dismissed,  according  to  the  rule  in  common- 
law  cases. 

The  doctrine  of  an  equal  division  of  damages  in  admiralty  in  the 
case  of  a  collision  between  two  vessels,  where  both  are  guilty  of  fault 
contributing  to  the  collision,  had  long  been  the  rule  in  England,  but 
was  first  established  by  this  court  in  the  case  of  The  Schooner  Catha- 
rine v.  Dickinson,  17  How.  170,  15  L.  Ed.  233,  and  has  been  applied  by 
it  to  cases  where,  both  vessels  being  in  fault,  only  one  of  them  was 
injured  as  well  as  to  cases  where  both  were  injured,  the  injured 
vessel,  in  the  first  case,  recovering  only  one-half  of  its  damages,  and, 
in  the  second  case,  the  damages  suffered  by  the  two  vessels  being  added 
together  and  equally  divided,  and  the  vessel  whose  damages  exceeded 
such  one-half  recovering  the  excess  against  the  other  vessel.  In  the 
case  of  The  Schooner  Catharine  v.  Dickinson,  supra,  both  vessels  be- 
ing held  in  fault  for  the  collision,  it  was  said  by  the  court,  speaking 
by  Mr.  Justice  Nelson  (17  How.  177,  15  L.  Ed.  233),  that  the  well- 
settled  rule  in  the  English  admiralty  was  "to  divide  the  loss,"  and 
that  "under  the  circumstances  usually  attending  these  disasters"  the 
court  thought  "the  rule  dividing  the  loss  the  most  just  and  equitable, 
and  as  best  tending  to  induce  care  and  vigilance  on  both  sides,  in 
the  navigation." 

In  Atlee  v.  Packet  Co.,  21  Wall.  389,  395  (22  L.  Ed.  619),  Miller, 
J.,  said :  "But  the  plaintiff  has  elected  to  bring  his  suit  in  an  admiralty 

21  Portions  of  the  opinion  are  omitted. 


CONTRIBUTORY   NEGLIGENCE  353 

Court,  which  has  jurisdiction  of  the  case,  notwithstanding  the  concur- 
rent right  to  sue  at  law.  In  this  court  the  course  of  proceeding  is  in 
many  respects  different  and  the  rules  of  decision  are  different.  The 
mode  of  pleading  is- different,  the  proceeding  more  summary  and  in- 
formal, and  neither  party  has  a  right  to  trial  by  jury.  An  important 
difference  as  regards  this  case  is  the  rule  for  estimating  the  damages. 
In  the  common-law  court  the  defendant  must  pay  all  the  damages 
or  none.  If  there  has  been  on  the  part  of  the  plaintiffs  such  careless- 
ness or  want  of  skill  as  the  common  law  would  esteem  to  be  contribu- 
tory negligence,  they  can  recover  nothing.  By  the  rule  of  the  Ad- 
miralty Court,  where  there  has  been  such  contributory  negligence,  or, 
in  other  words,  when  both  have  been  in  fault,  the  entire  damages  re- 
sulting from  the  collision  must  be  equally  divided  between  the  par- 
ties. This  rule  of  the  admiralty  commends  itself  quite  as  favorably 
in  its  influence  in  securing  practical  justice  as  the  other,  and  the  plain- 
tiff who  has  the  selection  of  the  forum  in  which  he  will  litigate  can- 
not complain  of  the  ru}e  of  that  forum."  This  court,  therefore,  treated 
the  case  as  if  it  had  been  one  of  a  collision  between  two  ves- 
sels. *  *  * 

Some  of  the  cases  referred  to  show  that  this  court  has  extended 
the  rule  of  the  division  of  damages  to  claims  other  than  those  for 
damages  to  the  vessels  which  were  in  fault  in  a  collision.  *  *  * 

The  rule  of  the  equal  apportionment  of  the  loss  where  both  parties 
were  in  fault  would  seem  to  have  been  founded  upon  the  difficulty  of 
determining  in  such  cases  the  degree  of  negligence  in  the  one  and 
the  other.  It  is  said  by  Cleirac  (Us  et  Coutumes  de  la  Mer,  p.  68)  that 
such  rule  of  division  is  a  rustic  sort  of  determination,  and  such  as  ar- 
biters and  amicable  compromisers  of  disputes  commonly  follow,  where 
they  cannot  discover  the  motives  of  the  parties,  or  when  they  see 
faults  on  both  sides. 

As  to  the  particular  question  now  presented  for  decision,  there  has 

been  a  conflict  of  opinion  in  the  lower  courts  of  the  United  States. 
*  *  * 

All  these  were  cases  in  admiralty,  and  were  not  cases  of  collision  be- 
tween two  vessels.  They  show  an  amelioration  of  the  common-law 
rule,  and  an  extension  of  the  admiralty  rule,  in  a  direction  which  we 
think  is  manifestly  just  and  proper.  Contributory  negligence  in  a 
case  like  the  present  should  not  wholly  bar  recovery.  There  would 
have  been  no  injury  to  the  libelant,  but  for  the  fault  of  the  vessel ;  and 
while,  on  the  one  hand,  the  court  ought  not  to  give  him  full  compen- 
sation for  his  injury,  where  he  himself  was  partly  in  default,  it 
ought  not,  on  the  other  hand,  to  be  restrained  from  saying  that  the 
fact  of  his  negligence  should  not  deprive  him  of  all  recovery  of  dam- 
ages. As  stated  by  the  District  Judge  in  his  opinion  in  the  present  case, 
the  more  equal  distribution  of  justice,  the  dictates  of  humanity,  thr 
CHAP.CAS.TORTS— 23 


354  NEGLIGENCE 

safety  of  life  and  limb,  and  the  public  good,  will  be  best  promoted  by 
holding  vessels  liable  to  bear  some  part  of  the  actual  pecuniary  loss 
sustained  by  the  libelant,  in  a  case  like  the  present,  where  their  fault 
is  clear,  provided  the  libelant's  fault,  though  evident,  is  neither  willful, 
nor  gross,  nor  inexcusable,  and  where  the  other  circumstances  pre- 
sent a  strong  case  for  his  relief.  We  think  this  rule  is  applicable  to 
all  like  cases  of  marine  tort,  founded  upon  negligence,  and  prosecuted 
in  admiralty,  as  in  harmony  with  the  rule  for  the  division  of  dam- 
ages in  cases  of  collision.  The  mere  fact  of  the  negligence  of  the  li- 
belant as  partly  occasioning  the  injuries  to  him,  when  they  also  oc- 
curred partly  through  the  negligence  of  the  officers  of  the  vessel, 
does  not  debar  him  entirely  from  a  recovery. 

The  necessary  conclusion  is  that  the  question  whether  the  libelant, 
upon  the  facts  found,  is  entitled  to  a  decree  for  divided  damages, 
must  be  answered  in  the  affirmative,  in  accordance  with  the  judgment 
below.  This  being  the  only  question  certified,  and  the  amount  in  dis- 
pute being  insufficient  to  give  this  court  jurisdiction  of  the  whole 
case,  our  jurisdiction  is  limited  to  reviewing  this  question.  Union 
Bank  v.  Kansas  City  Bank,  136  U.  S.  223,  10  Sup.  Ct.  1013,  34  L.  Ed. 
341.  Whether  in  a  case  like  this  the  decree  should  be  for  exactly 
one-half  of  the  damages  sustained,  or  might,  in  the  discretion  of  the 
court,  be  for  a  greater  or  less  proportion  of  such  damages,  is  a  ques- 
tion not  presented  for  our  determination  upon  this  record,  and  we 
express  no  opinion  upon  it. 

Decree  affirmed. 


3.  "Tns  LAST  CLEAR  CHANCE"  2J 


INDIANAPOLIS  TRACTION  &  TERMINAL  CO.  v.  CROLY. 

(Appellate  Court  of  Indiana,  1911.     54  Ind.  App.  566,  96  N.  E.  973.) 

LAIRY,  J.28  The  appellee  in  this  case,  a  child  between  11  and  12 
years  of  age,  was  injured  by  being  run  over  by  appellant's  street  car. 
The  complaint  charges  appellant  was  negligent  in  running  its  car  at 
a  high  and  dangerous  rate  of  speed  through  a  populous  part  of  the 
city,  and  that  no  gong  was  sounded  or  other  warning  given  of  the 
approach  of  the  car  to  the  place  where  plaintiff  was  injured.  It  is 
further  alleged  that  the  motorman  in  charge  of  said  car  did  not  have 
the  same  under  proper  control.  The  issue  was  formed  by  an  answer  in 
general  denial.  The  case  was  submitted  to  a  jury  for  trial,  and  a 
verdict  was  returned  in  favor  of  the  plaintiff.  *  *  * 

22  For  discussion  of  principles,  see  Chapin  on  Torts,  §  113. 

23  Portions  of  the  opinion  are  omitted. 


CONTRIBUTORY   NEGLIGENCE  355 

We  have  held  in  this  case  that  the  undisputed  evidence  shows  that 
the  plaintiff  failed  to  use  due  care  for  her  own  safety  in  approaching 
and  entering  upon  the  tracks  of  the  defendant  in  such  a  way  as  to 
expose  herself  to  danger  from  a  moving  car ;  but  this  does  not  amount 
to  a  finding  that  she  was  guilty  of  contributory  negligence.  Before  it 
can  be  held  as  a  matter  of  law  that  she  was  guilty  of  contributory  neg- 
ligence, it  must  further  appear  that  the  second  essential  element  of 
contributory  negligence  was  present,  namely,  the  causal  connection  be- 
tween the  want  of  due  care  on  the  part  of  the  plaintiff  and  her  injury. 
Where  the  evidence  shows  without  dispute,  as  it  does  in  this  case, 
that  a  collision  actually  occurred  by  reason  of  the  plaintiff  being  in  a 
place  of  threatened  danger,  to  which  her  own  negligence  has  exposed 
her,  the  court  will  infer  that  the  injury  occasioned  by  the  collision  was 
the  proximate  result  of  such  want  of  due  care  on  her  part,  unless  there 
is  some  evidence  in  the  record  to  rebut  the  presumption  as  to  such 
causal  connection.  If,  however,  there  is  evidence  in  the  record  which 
tends  to  rebut  the  presumption  and  from  which  the  jury  may  have 
found  that  such  want  of  due  care  on  her  part  was  not  the  proximate 
cause,  but  only  the  remote  cause,  of  the  injury,  then  the  verdict  can 
be  upheld  notwithstanding  the  failure  of  the  plaintiff  to  use  due  care. 
Under  such  a  state  of  the  evidence,  contributory  negligence  cannot  be 
declared  by  this  court  as  a  matter  of  law,  for  the  reason  that  there  is 
a  conflict  in  the  evidence  as  to  the  second  essential  element  of  contribu- 
tory negligence. 

When  the  evidence  is  of  such  a  character  that  it  tends  to  show  that 
the  want  of  due  care  on  the  part  of  the  plaintiff  was  not  the  proximate 
cause  of  the  injury,  but  only  the  remote  cause,  or  only  gave  rise  to  a 
condition  with  reference  to  which  the  defendant  was  required  to  act, 
it  gives  room  for  the  application  of  the  doctrine  of  last  clear  chance. 
The  court  in  this  case  instructed  upon  this  doctrine  and  submitted  the 
case  to  the  jury  upon  the  theory  that,  if  certain  facts  enumerated  in 
the  instructions  appeared  from  the  evidence,  they  would  be  justified  in 
finding  for  the  plaintiff,  even  though  she  did  not  use  due  care.  If 
there  is  some  evidence  in  the  record  tending  to  establish  a  state  of 
facts  to  which  the  doctrine  of  last  clear  chance  can  be  properly  applied, 
such  evidence  will  sustain  the  verdict.  It  is  contended  by  the  appellant 
that  there  is  no  evidence  in  the  record  tending  to  prove  any  state  of 
facts  to  which  this  doctrine  can  be  correctly  applied,  and  this  leads  us 

to  a  further  consideration  of  the  proper  application  of  this  doctrine. 
*     *     * 

In  entering  upon  the  discussion  of  the  correct  application  of  the  rule 
under  consideration,  it  is  proper  to  remark  that  its  application  does 
not  so  operate  as  to  constitute  it  an  exception  to  the  long-established 
rule  that  contributory  negligence  on  the  part  of  the  person  injured 
bars  a  recovery  unless  the  injury  is  wantonly  or  willfully  inflicted. 
This  rule,  without  any  recognized  exceptions,  is  still  the  law  of  this 
state.  It  may  also  be  stated  that  the  law  of  comparative  negligence 


356    .  NEGLIGENCE 

formerly  recognized  in  Illinois  has  never  been  recognized  or  applied 
by  the  courts  of  this  state. 

If  a  plaintiff  is  negligent  to  any  degree,  and  such  negligence  proxi- 
mately  contributes  to  his  injury,  he  cannot  recover  on  account  of  the 
negligence  of  the  defendant,  and  it  matters  not  that  his  negligence  may 
have  been  slight  as  compared  with  more  gross  and  reprehensible  neg- 
ligence on  the  part  of  the  defendant.  Terre  Haute,  etc.,  R.  Co.  v. 
Graham,  95  Ind.  286,  48  Am.  Rep.  719;  Pennsylvania  Co.  v.  Roney, 
89  Ind.  453,  46  Am.  Rep.  173 ;  Ivens  v.  Cincinnati,  etc.,  R.  Co.,  103 
Ind.  27,  2  N.  E.  134. 

The  doctrine  of  last  clear  chance  is  not  an  exception  to  either  of  the 
well-settled  rules  just  stated.  Its  proper  application  does  not  permit 
an  injured  person  to  recover  in  spite  of  negligence  on  his  part  con- 
tributing to  the  injury,  but  it  does  permit  a  recovery  notwithstanding 
a  want  of  due  care  on  the  part  of  the  plaintiff,  in  cases  where  the  facts 
are  such  that  it  may  be  said  that  the  plaintiff's  want  of  due  care  was 
not  the  proximate  cause  of  the  injury.  Evidence  to  which  this  rule  of 
law  is  applicable  does  not  tend  to  prove  that  the  injured  party  used 
due  care,  but  it  does  tend  to  prove  that  such  want  of  due  care  on  the 
part  of  the  plaintiff  was  not  the  proximate  cause  of  the  injury,  and 
that  the  injury  was  caused  solely  by  the  failure  of  the  defendant  to 
take  advantage  of  the  last  clear  chance  of  avoiding  the  injury.  Smith 
v.  Norfolk,  etc.,  R.  Co.,  114  N.  C.  728,  19  S.  E.  863,  923,  25  L.  R.  A. 
287;  Nashua  Iron,  etc.,  v.  Worcester,  etc.,  R.  Co.,  62  N.  H.  159;  Tan- 
ner v.  Louisville,  etc.,  R.  Co.,  60  Ala.  621 ;  Button  v.  Hudson  River 
Co.,  18  N.  Y.  248.  *  *  * 

From  the  very  language  in  which  the  rule  is  generally  expressed,  it 
is  apparent  that,  in  order  to  hold  a  defendant  liable  by  the  application 
of  the  rule,  it  must  appear  from  the  evidence  that  such  defendant's  op- 
portunity of  preventing  the  injury  was  later  in  point  of  time  than  that 
of  the  plaintiff,  and  that  such  defendant  failed  to  take  advantage  of 
the  last  clear  chance.  The  rule  has  been  most  frequently  applied  to  a 
class  of  cases  in  which  it  appears  that  the  person  or  property  of  the 
plaintiff  has  been  injured  by  a  collision  with  a  locomotive,  car,  street 
car,  automobile,  or  other  agency  under  control  of  the  defendant  or  his 
agents ;  but  other  cases  may  arise  in  which  the  rule  may  find  a  proper 
application.  The  rule  cannot  be  applied  to  every  case  in  which  it  ap- 
pears that  an  injury  has  been  inflicted  on  the  plaintiff  or  his  property 
by  a  collision  with  an  agency  under  the  control  of  the  defendant,  but 
only  in  such  of  those  cases  as  are  brought  within  the  operation  of  the 
rule  by  the  facts  disclosed  by  the  evidence.  Where  the  evidence  in 
the  case  tends  to  show  that  the  situation  of  the  parties  just  prior  to  the 
injury  was  such  that  the  defendant,  by  the  exercise  of  due  care,  could 
have  prevented  it,  and  that  the  plaintiff  could  not,  then  the  rule  be- 
comes applicable.  If,  however,  the  undisputed  evidence  shows  that 
the  opportunity  of  the  plaintiff  to  avoid  the  injury  was  as  late  or  later 
than  that  of  the  defendant,  the  rule  can  have  no  application,  and  the 


CONTRIBUTORY  NEGLIGENCE  357 

court  should  refuse  to  instruct  upon  the  doctrine  under  consideration. 
In  cases  where  the  evidence  is  in  conflict  upon  this  point,  or  in  cases 
where  the  undisputed  evidence  upon  this  question  is  of  such  a  charac- 
ter that  reasonable  minds  might  draw  opposite  inferences,  the  ques- 
tion should  be  submitted  to  the  jury  under  proper  instructions  from 
the  court. 

As  we  have  heretofore  said,  the  doctrine  of  last  clear  chance  applies 
to  cases  only  where  the  defendant's  opportunity  of  preventing  the 
injury  by  the  exercise  of  due  care  was  later  in  point  of  time  than  that 
of  the  plaintiff.  This  is  a  rule  of  universal  application,  and  it  affords 
the  test  of  the  applicability  of  the  doctrine  to  a  particular  case. 

As  a  sort  of  corollary  to  this  rule,  the  courts  have  stated  as  a  gen- 
eral proposition  that,  where  the  person  injured  has  negligently  expos- 
ed himself  to  the  injury,  he  cannot  recover  on  account  of  the  negli- 
gence of  the  defendant  by  an  application  of  the  doctrine  of  last  clear 
chance,  unless -it  appears  that  the  defendant's  negligence  intervened  or 
continued  after  the  negligence  of  the  plaintiff  ceased.  Differently 
stated,  the  proposition  is  that,  if  the  negligence  of  the  injured  party 
concurs  with  that  of  the  defendant  up  to  the  very  instant  of  the  acci- 
dent, or  if  it  continues  as  long  at  least  as  the  negligence  of  the  defend- 
ant, the  doctrine  cannot  be  properly  applied  against  the  defendant. 
The  proposition  stated  in  the  corollary  will  serve  as  a  general  rule  for 
the  application  of  the  doctrine ;  but  it  is  not  a  proposition  of  universal 
application.  There  is  at  least  one  class  of  cases  in  which  it  has  been 
held  that  an  injured  person  may  recover  by  the  application  of  the  doc- 
trine of  last  clear  chance,  notwithstanding  his  own  negligence  contin- 
ues up  to  the  very  time  of  the  injury.  In  this  class  of  cases  the  courts 
recognize  an  exception  to  the  corollary  proposition  above  stated. 

\Ye  shall  first  consider  and  apply  the  general  rule  hereinbefore  stat- 
ed, next  the  application  of  the  proposition  stated  in  the  corollary,  and 
lastly  the  class  of  cases  in  which  the  exception  to  the  corollary  propo- 
sition is  recognized. 

The  general  proposition  is  applicable  to  a  class  of  cases  in  which  it 
appears  that  the  plaintiff  by  his  own  negligence  has  placed  himself  in 
a  position  of  threatened  danger  from  contact  with  some  agency  under 
the  control  of  the  defendant,  and  where  his  situation  is  such  that  he 
cannot  by  the  exercise  of  due  care  extricate  himself  from  the  danger 
in  time  to  avoid  the  injury,  but  that  the  defendant,  by  the  exercise  of 
due  care,  could  prevent  it  and  fails  to  do  so.  Under  such  circum- 
stances, the  negligence  of  the  plaintiff  is  deemed  to  cease  at  and  after 
the  time  he  reaches  a  situation  where  due  care  on  his  part  would  be 
unavailing;  and  the  special  duty  of  the  defendant  to  such  person  im- 
mediately arises,  and  if  negligence  on  the  part  of  the  defendant  then 
intervenes,  or  if,  after  that  time,  the  defendant,  by  the  exercise  of 
due  care,  could  prevent  the  injury  and  fails  to  do  so,  such  subsequent 
negligence  on  the  part  of  the  defendant  is  treated  as  the  sole  proxi- 
mate cause.  The  rule  of  law  applicable  to  cases  involving  circum- 


858  NEGLIGENCE 

stances  of  this  character  is  sometimes  referred  to  as  the  rule  of  ante- 
cedent and  subsequent  negligence.  The  reason  for  the  rule  in  such 
cases  is  that,  after  plaintiff's  negligence  has  ceased,  and  after  his  op- 
portunity to  avoid  the  collision  has  passed,  the  defendant  is  guilty  of 
negligence  in  failing  to  take  advantage  of  the  last  clear  chance  to  avoid 
the  injury.  In  such  a  case,  if  the  person  in  charge  of  the  street  car  or 
other  agency  of  the  defendant  sees  the  dangerous  situation  of  the 
plaintiff  before  the  collision,  or  if  he  might  have  discovered  it  by  the 
use  of  due  care,  and  if  the  collision  occurs  either  by  reason  of  his  fail- 
ure to  use  due  care  to  discover  the  danger  or  to  prevent  the  injury  after 
such  discovery,  the  plaintiff  may  recover  even  though  negligent  in  the 
first  instance.  In  such  a  case  the  defendant  or  his  servants  have  the 
power  to  prevent  the  injury  after  the  conditions  arise  which  give  rise 
to  the  duty  to  use  special  care  toward  the  party  injured  and  the  plain- 
tiff has  not.  Cleveland,  etc.,  R.  Co.  v.  Klee,  154  Ind.  430,  56  N.  E. 
234;  Metropolitan  St.  R.  Co.  v.  Arnold,  67  Kan.  260,  72  Pac.  857; 
Pickett  v.  Wilmington  R.  Co.,  117  N.  C.  616,  23  S.  E.  264,  30  L.  R.  A. 
257,  53  Am.  St.  Rep.  611;  Houston  R.  Co.  v.  Sympkins,  54  Tex.  615, 
38  Am.  Rep.  632. 

If,  in  such  case,  the  injury  results  from  a  negligent  failure  on  the 
part  of  the  person  in  charge  of  the  car  or  other  agency  to  see  the  dan- 
gerous situation  of  the  plaintiff,  and  if  such  dangerous  situation  could 
have  been  discovered  by  the  use  of  proper  care  in  time  to  have  avoided 
the  injury,  the  plaintiff  may  recover  by  an  application  of  the  rule  of 
last  clear  chance.  Under  such  circumstances,  the  defendant  or  his 
servant  by  the  use  of  due  care  could  have  discovered  the  danger,  after 
the  emergency  giving  rise  to  the  special  duty  arose,  and  so  likewise 
could  the  plaintiff;  but  the  defendant,  in  case  he  had  discovered  the 
danger,  possessed  the  ability  to  prevent  the  injury,  while  the  plaintiff 
did  not.  The  defendant,  or  his  servants,  therefore,  had  the  last  clear 
chance,  for,  by  discovering  the  danger,  they  could  have  prevented  the 
injury;  but  the  plaintiff  could  not  have  prevented  the  injury,  even 
though  he  had  discovered  the  danger. 

The  weight  of  authority,  as  well  as  the  better  reason,  supports  the 
proposition  that,  in  cases  where  the  negligence  of  the  plaintiff  is  ante- 
cedent to  that  of  the  defendant,  and  where  such  negligence  of  the 
plaintiff  is  deemed  to  have  ceased  prior  to  the  injury,  the  plaintiff  may 
recover  by  the  application  of  the  doctrine  of  last  clear  chance;  and 
that  it  makes  no  difference,  in  such  a  case,  whether  the  injury  was 
caused  by  a  negligent  failure  to  discover  plaintiff's  danger,  or  by  neg- 
ligence in  failing  to  use  reasonable  care  to  prevent  the  injury  after 
discovering  such  danger. 

We  have  been  discussing  cases,  the  circumstances  of  which  show 
antecedent  and  subsequent  negligence,  and  to  which  the  general  rule, 
just  discussed,  applies ;  but  an  effort  is  frequently  made  to  invoke  the 
doctrine  of  last  clear  chance  in  a  class  of  cases  in  which  there  is  noth- 
ing to  show  that  the  negligence  of  the  defendant  was  subsequent  to 


CONTRIBUTORY   NEGLIGENCE  359 

that  of  the  plaintiff,  or  that  the  plaintiff's  negligence  terminated  prior 
to  the  injury  or  prior  to  that  of  the  defendant.  Such  cases  call  for 
the  application  of  the  proposition  heretofore  stated  as  a  corollary  to 
the  general  rule. 

The  proposition  stated  in  the  corollary  applies  to  a  class  of  cases  in 
which  it  appears  that  the  plaintiff,  without  observing  his  surroundings, 
negligently  goes  upon  the  track  of  the  defendant  or  in  such  close 
proximity  to  it  as  to  expose  himself  to  the  danger  of  injury  from  a 
passing  car,  and  where  there  is  nothing  to  prevent  him  from  observing 
his  danger  and  avoiding  the  injury  at  any  time  before  it  occurs,  and 
where  it  also  appears  that  the  motorman  by  reason  of  his  negligence 
did  not  see  the  plaintiff  or  his  danger  in  time  to  avoid  the  injury.  In 
such  a  case  the  negligence  of  the  plaintiff  is  concurrent  and  not  ante- 
cedent, and  the  reason  upon  which  the  general  rule  is  based  cannot 
apply.  If  the  want  of  care  on  the  part  of  the  plaintiff  consists  in  a  fail- 
ure to  discover  his  own  danger,  and  if  the  want  of  care  on  the  part  of 
the  defendant  consists  of  a  like  failure  to  observe  the  dangerous  situ- 
ation of  the  plaintiff,  and  if  such  want  of  due  care  on  the  part  of  both 
continues  until  the  injury  occurs,  or  becomes  so  imminent  that  neither 
can  prevent  it,  the  plaintiff  cannot  recover.  Under  such  circumstanc- 
es, the  opportunity  of  the  plaintiff  to  observe  the  danger  is  equal  to 
that  of  the  defendant,  and  the  duty  to  discover  the  danger  and  avoid 
the  injury  by  the  exercise  of  due  care  rests  equally  upon  him  and  the 
defendant.  If  the  opportunity  of  the  plaintiff  to  avoid  the  injury  was 
as  late  as  that  of  the  defendant,  how  can  it  be  said  that  the  defendant 
had  the  last  clear  chance  of  avoiding  it?  The  test  is:  What  wrong- 
ful conduct  occasioning  the  injury  was  in  operation  at  the  very  mo- 
ment it  occurred  or  became  inevitable?  If,  just  before  the  climax, 
one  party  only  had  the  power  to  prevent  the  injury,  and  he  neglected 
to  make  use  of  it,  the  responsibility  is  his  alone ;  but  if  each  had  the 
power  to  avoid  such  injury,  and  each  failed  to  use  it,  then  their  negli- 
gence is  concurrent,  and  neither  can  recover. 

In  such  a  case,  the  negligence  of  the  motorman  in  failing  to  keep  a 
lookout  in  front  of  his  car  is  the  violation  of  the  general  duty  which  he 
owes  to  all  persons  making  use  of  the  street.  He  does  not  owe  to  the 
person  negligently  exposed  to  injury  any  special  duty  different  from 
that  owing  to  other  travelers  in  the  street,  for  the  reason  that  he  does 
not  know  prior  to  the  injury  that  the  situation  of  such  person  is  such 
as  to  expose  him  to  a  particular  danger.  Such  failure  of  the  motor- 
man to  perform  a  general  duty  of  this  character  is  negligence,  to  which 
contributory  negligence  of  the  plaintiff  is  a  defense.  Dyerson  v.  Un- 
ion, etc.,  R.  Co.,  74  Kan.  528,  87  Pac.  680,  7  L.  R.  A.  (N.  S.)  132,  11 
Ann.  Cas.  207;  Green  v.  Los  Angeles  Terminal  Co.,  143  Cal.  31,  76 
Pac.  719,  101  Am.  St.  Rep.  68;  Smith  v.  Norfolk,  etc.,  R.  Co.,  114  N. 
C.  728,  19  S.  E.  863,  923,  25  L.  R.  A.  287;  Butler  v.  Rockland,  etc., 
R.  Co.,  99  Me.  149,  58  Atl.  775,  105  Am.  St.  Rep.  267;  French  v. 


360  NEGLIGENCE 

Grand  Trunk,  etc.,  R.  Co.,  76  Vt.  441,  58  Atl.  722 ;  Robards  v.  Indian- 
apolis St.  R.  Co.,  32  Ind.  App.  297,  66  N.  E.  66,  67  N.  E.  953. 

In  this  case  it  appears  from  the  uncontradicted  evidence  that  the 
plaintiff  walked  across  the  street  in  plain  view  of  an  approaching 
street  car  which  was  moving  at  a  rapid  rate  of  speed,  and  stepped 
upon  the  track  only  three  or  four  feet  in  front  of  such  moving  car.  If 
she  had  used  due  care  to  observe  the  approach  of  the  car  a  moment 
before  she  stepped  upon  the  track,  she  could  have  avoided  the  injury. 
Her  negligence  was  concurrent  and  not  antecedent,  and  therefore  the 
doctrine  of  last  clear  chance,  as  applied  to  antecedent  and  subsequent 
negligence,  can  have  no  application  to  this  evidence,  and  this  case  is 
governed  by  the  proposition  stated  in  the  corollary,  unless  the  circum- 
stances disclosed  are  such  as  to  bring  it  within  that  class  of  cases  to 
which  the  corollary  proposition  does  not  apply. 

The  proposition  stated  in  the  corollary  has  no  application  to  that 
class  of  cases  in  which  it  appears  that  the  motorman  actually  saw  the* 
person  injured  and  realized,  or  should  have  realized,  the  peril  to  which 
he  was  exposed,  or  was  about  to  expose  himself,  in  time  to  have  pre- 
vented the  injury.  In  such  a  case  the  special  duty  toward  the  par- 
ticular person  arises  as  soon  as  the  motorman  sees  him  under  such 
conditions  as  would  indicate  to  a  person  of  ordinary  prudence  that  he 
was  in  danger  of  being  injured  by  the  car,  or  was  about  to  expose 
himself  to  such  injury.  It  then  becomes  the  special  duty  of  the  motor- 
man to  use  every  reasonable  means  to  avoid  injuring  him;  and,  if  he 
does  not  do  so,  the  injured  person  may  recover  notwithstanding  his 
want  of  care  in  failing  to  discover  the  approach  of  the  car  continued 
up  to  the  very  instant  of  the  injury,  and  notwithstanding,  also,  that 
the  plaintiff  possessed  the  physical  ability  to  have  avoided  the  injury 
in  case  he  had  discovered  his  peril  at  any  time  before  the  accident  hap- 
pened. Cases  of  this  kind  frequently  arise  out  of  an  injury  to  a  per- 
son working,  walking,  riding,  or  driving  upon  the  tracks  of  a  street 
railway  company,  or  out  of  an  injury  to  a  person  who  by  reason  of 
the  abstracted  condition  of  his  mind,  or  by  reason  of  his  attention  be- 
ing diverted,  or  for  some  other  reason,  enters  upon  the  track  of  such 
company,  without  observing  his  danger  from  approaching  cars,  and 
remains  oblivious  to  such  danger  until  he  is  struck  and  injured.  In 
such  a  case  the  company  may  be  properly  held  liable  by  an  application 
of  the  doctrine  of  last  clear  chance,  if  there  is  evidence  from  which 
the  jury  may  properly  find  that  the  motorman  actually  knew  of  the 
perilous  situation  of  the  person  subsequently  injured  in  time  to  have 
avoided  the  injury  by  the  exercise  of  proper  care.  Under  such  a  state 
of  facts,  the  motorman  possessed  the  physical  ability  to  avoid  the  in- 
jury before  the  accident,  and  so  also  has  the  injured  party.  In  this  re- 
spect their  chances  are  equal ;  but  the  motorman  actually  possesses  the 
knowledge  of  the  danger  and  appreciates  the  necessity  of  taking  steps 
to  avoid  the  injury,  while  the  person  injured  has  no  actual  knowledge 


CONTRIBUTORY   NEGLIGENCE  361 

of  his  danger,  and  does  not  appreciate  the  necessity  of  taking  steps  to 
avoid  it. 

The  fact  that  the  motorman  sees,  or  otherwise  has  actual  knowledge 
of,  the  dangerous  situation  in  which  the  negligence  of  the  plaintiff  has 
placed  him,  and  that  he  observes  that  the  plaintiff  is  unconscious  of 
his  surroundings  and  oblivious  of  his  danger,  gives  to  such  motorman 
the  last  clear  chance  of  preventing  the  injury,  and,  in  case  he  fails  to 
take  advantage  of  it,  the  plaintiff  may  recover.  Some  courts  base  the 
right  of  the  plaintiff  to  recover  in  such  a  case  up.on  a  different  ground, 
and  assign  as  a  reason  that  the  conduct  of  the  motorman,  in  failing  to 
use  proper  means  to  stop  the  car  after  seeing  the  situation  of  the 
plaintiff  and  observing  that  he  is  not  likely  to  escape  injury,  is  of  such 
a  reckless,  wanton,  and  willful  character  that  it  amounts  to  construc- 
tive willfulness,  and  that  contributory  negligence  is  not  a  defense  to 
an  action  based  on  an  injury  so  caused.  Krenzer  v.  Pittsburg,  etc., 
R.  Co.,  151  Ind.  587,  43  N.  E.  649,  52  N.  E.  220,  68  Am.  St.  Rep.  252; 
Smith  v.  Norfolk,  etc.,  R.  Co.,  114  N.  C.  728,  19  S.  E.  863,  923,  25  L. 
R.  A.  287.  The  rule  is  well  stated  in  the  case  of  Harrington  v.  Los 
Angeles,  etc.,  R.  Co.,  140  Cal.  514,  74  Pac.  15,  63  L.  R.  A.  238,  98 
Am.  St.  Rep.  85.  In  speaking  of  the  proposition  here  under  considera- 
tion, the  court  says:  "It  is  immaterial  whether  the  liability  of  the 
defendant  in  such  a  case  be  based  upon  the  theory  that  the  negligence 
of  the  defendant,  being  the  later  negligence,  is  the  sole  proximate 
cause  of  the  injury,  or  upon  the  theory  that  the  defendant  has  been 
guilty  of  willful  and  wanton  negligence.  In  either  case,  the  liability 
would  exist;  for,  where  an  act  is  done  wantonly  and  willfully,  con- 
tributory negligence  on  the  part  of  the  injured  person  is  no  bar  to  a 
recovery.  Esrey  v.  Southern  Pac.  R.  Co.,  103  Cal.  541,  37  Pac.  500. 
As  said  by  Mr.  Beach  in  his  work  on  Contributory  Negligence :  'When 
one,  after  discovering  that  I  have  carelessly  exposed  myself  to  an  in- 
jury, neglects  to  use  ordinary  care  to  avoid  hurting  me,  and  inflicts  the 
injury  upon  me  as  a  result  of  his  negligence,  there  is  very  little  room 
for  a  claim  that  such  conduct  on  his  part  is  not  willful  negligence.' 
It  is,  of  course,  true,  as  urged  by  defendant,  that  it  is  essential  to  such 
liability  that  the  defendant  did  actually  know  of  the  danger,  and  that 
there  is  no  such  liability  where  he  does  not  know  of  the  peril  of  the 
injured  party,  but  would  have  discovered  the  same  but  for  remissness 
on  his  part.  Herbert  v.  Southern  P.  Co.,  121  Cal.  227,  53  Pac.  651. 
This,  however,  does  not  mean,  as  seems  to  be  contended,  that  de- 
fendant must  know  that  the  injury  is  inevitable  if  he  fails  to  exercise 
care,  and  the  decisions  indicate  no  such  requirement.  It  is  enough 
that  the  circumstances  of  which  the  defendant  has  knowledge  are  such 
as  to  convey  to  the  mind  of  a  reasonable  man  a  question  as  to  whether 
the  other  party  will  be  able  to  escape  the  threatened  injury.  One  in 
such  a  situation  is  in  a  dangerous  position.  It  was  said  in  the  prevail- 
ing opinion  in  Everett  v.  Los  Angeles  Consol.  Electric  R.  Co.,  115 


362  NEGLIGENCE 

Cal.  105,  106,  43  Pac.  207,  46  Pac.  889,  34  L.  R.  A.  350,  distinguishing 
that  case  from  those  where  the  principle  under  discussion  is  applica- 
ble: 'The  case  is  not  like  one  where  the  injured  party  is  discovered 
in  time  lying  or  standing  upon  a  railroad  track  under  such  circum- 
stances as  to  make  it  doubtful  whether  he  can  or  will  get  out  of  the 
way;  or  where  one  is  attempting  on  foot,  or  otherwise,  to  make  a 
crossing  or  passing  along  or  on  its  track  over  a  bridge  or  narrow 
causeway,  or  in  a  deep  cut  or  tunnel,  where  to  turn  aside  would  be 
either  dangerous  or  .impossible.  *  *  *  Persons  cannot  be  reck- 
lessly or  wantonly  run  down  on  a  railroad  track,  however  negligent 
themselves,  where  the  circumstances  are  such  as  to  convey  to  the 
mind  of  a  reasonable  man  a  question  as  to  whether  they  will  be  able 
to  get  out  of  the  way.' "  *  *  * 

We  can  see  no  room  for  the  application  of  the  doctrine  of  last 
clear  chance  to  a  case  where  the  failure  on  the  part  of  the  defendant 
to  avoid  the  injury  to  plaintiff,  after  he  had  negligently  exposed  him- 
self to  danger,  was  due  solely  to  the  failure  on  the  part  of  the  motor- 
man  to  observe  plaintiff's  danger,  and  where  it  also  appears  that  the 
plaintiff's  failure  to  avoid  the  injury  resulted  solely  from  a  like  want 
of  care  on  his  part  in  failing  to  observe  his  own  danger,  and  where 
his  opportunity  of  avoiding  the  injury  was  as  late  or  later  than  that 
of  the  defendant.  To  apply  the  doctrine  of  last  clear  chance  to  a  case 
of  this  kind  would  be  either  to  make  it  an  exception  to  the  rule  that 
contributory  negligence  of  the  plaintiff  bars  a  recovery  in  an  action 
based  on  negligence,  or  to  hold  that  the  negligence  of  the  defendant 
in  such  a  case  is  more  culpable  than  that  of  the  plaintiff,  and  thus  rec- 
ognize the  doctrine  of  comparative  negligence. 

It  would  be  a  fruitless  task  to  attempt  a  review  of  the  decisions  up- 
on this  branch  of  the  question.  The  cases  cannot  be  reconciled  for 
the  reason  that  some  of  the  cases  seem  to  have  been  decided  without 
making  reference  to  any  fixed  rule  or  principle;  the  decision  appar- 
ently resting  upon  the  particular  facts  of  the  case.  For  a  collection 
and  classification  of  cases  upon  this  subject,  we  refer  to  the  notes  upon 
the  case  of  Dyerson  v.  Union  Pac.  Ry.  Co.,  7  L.  R.  A.  (N.  S.)  132, 
and  also  the  notes  upon  the  case  of  Bogan  v.  Carolina  Central  R.  Co., 
55  L.  R.  A.  418. 

Under  what  circumstances  plaintiff's  negligence  will  be  deemed  to 
have  terminated  prior  to  the  injury  so  as  to  bring  the  case  within  the 
class  first  named  will  often,  no  doubt,  present  a  question  of  some  diffi- 
culty. If  the  evidence  upon  the  question  is  conflicting,  or  if  opposite 
inferences  may  be  reasonably  drawn  from  the  undisputed  facts,  it  is 
of  course  a  question  for  the  jury. 

In  this  case,  the  facts  bearing  upon  this  question  are  undisputed, 
and  but  one  reasonable  inference  can  be  drawn,  and  that  is  that  the 
plaintiff's  want  of  care  continued  up  to  the  time  of  her  injury.  Her 


CONTRIBUTORY   NEGLIGENCE  '  3G3 

right  to  recover  in  this  case,  therefore,  depended  upon  the  question 
as  to  whether  or  not  the  motorman  had  actual  knowledge  of  her  dan- 
ger in  time  to  have  avoided  the  injury. 

The  judgment  is  reversed,  with  directions  to  grant  a  new  triaL 


4.  CHILDREN  2* 
STONE  v.  DRY  DOCK,  E.  B.  &  B.  R.  CO. 

(Court  of  Appeals  of  New  York,  1889.     115  N.  Y.  104,  21  N.  E.  712.) 

This  was  an  action  to  recover  damages  for  alleged  negligence  in 
causing  the  death  of  plaintiff's  intestate,  a  child  of  seven  years  and 
three  or  four  months  old. 

ANDREWS,  J.  The  nonsuit  was  placed  on  the  ground  that  an  infant 
seven  years  of  age  was  sui  juris,  and  that  the  act  of  the  child  in 
crossing  the  street  in  front  of  the  approaching  car  was  negligence  on 
her  part,  which  contributed  to  her  death  and  barred  recovery.  We 
think  the  case  should  have  been  submitted  to  the  jury. 

The  negligence  of  the  driver  of  the  car  is  conceded.  His  conduct 
in  driving  rapidly  along  Canal  street  at  its  intersection  with  Orchard 
street,  without  looking  ahead,  but  with  his  eyes  turned  to  the  inside  of 
the  car,  was  grossly  negligent.  Mangam  v.  Brooklyn  R.  R.  Co.,  38  N. 
Y.  455,  98  Am.  Dec.  66;  Railroad  Co.  v.  Gladmon,  15  Wall.  401,  21 
L.  Ed.  114.  It  cannot  be  asserted  as  a  proposition  of  law  that  a  child 
just  passed  seven  years  of  age  is  sui  juris,  so  as  to  be  chargeable  with 
negligence.  The  law  does  not  define  when  a  child  becomes  sui  juris. 
Kunz  v.  City  of  Troy,  104  'N.  Y.  344,  10  N.  E.  442,  58  Am.  Rep.  508. 
Infants  under  seven  years  of  age  are  deemed  incapable  of  committing 
crime,  and  by  the  common  law  such  incapacity  presumptively  continues 
until  the  age  of  fourteen.  An  infant  between  those  ages  was  regarded 
as  within  the  age  of  possible  discretion,  but  on  a  criminal  charge 
against  an  infant  between  those  years  the  burden  was  upon  the  pros- 
ecutor to  show  that  the  defendant  had  intelligence  and  maturity  of 
judgment  sufficient  to  render  him  capable  of  harboring  a  criminal  in- 
tent. 1  Arch.  11.  The  Penal  Code  preserves  the  rule  of  the  common 
law  except  that  it  fixes  the  age  of  twelve  instead  of  fourteen  as  the 
time  when  the  presumption  of  incapacity  ceases.  Penal  Code,  §§ 
18,  19. 

In  administering  civil  remedies  the  law  does  not  fix  any  arbitrary 
period  when  an  infant  is  deemed  capable  of  exercising  judgment  and 
discretion.  It  has  been  said  in  one  case  that  an  infant  three  or  four 

2*  For  discussion  of  principles,  see  Chapin  on  Torts,  §  113. 


364  NEGLIGENCE 

years  of  age  could  not  be  regarded  as  sui  juris,  and  the  same  was  said 
in  another  case  of  an  infant  five  years  of  age.  Mangam  v.  Brooklyn 
R.  R.,  supra;  Fallen  v.  Central  Park,  N.  &  E.  R.  R.  R.  Co.,  64  N. 
Y.  13.  On  the  other  hand,  it  was  said  in  Cosgrove  v.  Ogden,  49  N. 
Y.  255,  10  Am.  Rep.  361,  that  a  lad  six  years  of  age  could  not  be 
assumed  to  be  incapable  of  protecting  himself  from  danger  in  streets 
or  roads,  and  in  another  case  that  a  boy  of  eleven  years  of  age  was 
competent  to  be  trusted  in  the  streets  of  a  city.  McMahon  v.  Mayor, 
etc.,  33  N.  Y.  642.  From  the  nature  of  the  case  it  is  impossible  to 
prescribe  a  fixed  period  when  a  child  becomes  sui  juris.  Some  chil- 
dren reach  the  point  earlier  than  others.  It  depends  upon  many  things, 
such  as  natural  capacity,  physical  conditions,  training,  habits  of  life, 
and  surroundings.  These  and  other  circumstances  may  enter  into  the 
question.  It  becomes,  therefore,  a  question  of  fact  for  the  jury  where 
the  inquiry  is  material  unless  the  child  is  of  so  very  tender  years  that 
the  court  can  safely  decide  the  fact.  The  trial  court  misapprehended 
the  case  of  Wendell  v.  New  York  Central  Railroad  Company,  91  N. 
Y.  420,  in  supposing  that  it  decided,  as  a  proposition  of  law,  that  a 
child  of  seven  years  was  capable  of  exercising  judgment  so  as  to  be 
chargeable  with  contributory  negligence.  It  was  assumed  in  that  case, 
both  on  the  trial  and  on  appeal,  that  the  child  whose  conduct  was  in 
question  was  capable  of  understanding,  and  .did  understand  the  peril 
of  the  situation,  and  the  evidence  placed  it  beyond  doubt  that  he  reck- 
lessly encountered  the  danger  which  resulted  in  his  death.  The  boy 
was  familiar  with  the  crossing,  and,  eluding  the  flagman  who  tried  to 
bar  his  way,  attempted  to  run  across  the  track  in  front  of  an  approach- 
ing train  in  plain  sight,  and  unfortunately  slipped  and  fell,  and  was 
run  over  and  killed.  It  appeared  that  he  was  a  bright;  active  boy,  ac- 
customed to  go  to  school  and  on  errands  alone,  and  sometimes  was 
intrusted  with  the  duty  of  driving  a  horse  and  wagon,  and  that  on 
previous  occasions  he  had  been  stopped  by  the  flagman  while  attempt- 
ing to  cross  the  track  in  front  of  an  approaching  train,  and  had  been 
warned  of  the  danger.  The  court  held,  upon  this  state  of  facts,  that 
the  boy  was  guilty  of  culpable  negligence.  But  the  case  does  not  de- 
cide, as  matter  of  law,  that  all  children  of  the  age  of  seven  years  are 
sui  juris. 

We  are  inclined  to  the  opinion  that  in  an  action  for  an  injury  to  a 
child  of  tender  years,  based  on  negligence,  who  may  or  may  not  have 
been  sui  juris  when  the  injury  happened,  and  the  fact  is  material  as 
bearing  upon  the  question  of  contributory  negligence,  the  burden  is 
upon  the  plaintiff  to  give  some  evidence  that  the  party  injured  was 
not  capable,  as  matter  of  fact,  of  exercising  judgment  and  discretion. 
This  rule  would  seem  to  be  consistent  with  the  principle  now  well 
settled  in  this  state,  that  in  an  action  for  a  personal  injury,  based  on 
negligence,  freedom  from  contributory  negligence  on  the  part  of  the 
party  injured  is  an  element  of  the  cause  of  action.  In  the  present 


CONTRIBUTORY   NEGLIGENCE  365 

case  the  only  fact  before  the  jury  bearing  upon  the  capacity  of  the 
child  whose  death  was  in  question  was  that  she  was  a  girl  seven  years 
and  three  months  old.  This,  we  think,  did  not  alone  justify  an  infer- 
ence that  the  child  was  incapable  of  exercising  any  degree1  of  care. 
But,  assuming  that  the  child  was  chargeable  with  the  exercise  of  some 
degree  of  care,  we  think  it  should  have  been  left  to  the  jury  to  deter- 
mine whether  she  acted  with  that  degree  of  prudence  which  might 
reasonably  be  expected,  under  the  circumstances,  of  a  child  of  her 
years.  This  measure  of  care  is  all  that  the  law  exacts  in  such  a  case. 
Thurber  v.  Harlem,  B.  M.  &  F.  R.  R.  Co.,  60  N.  Y.  335.  The  child 
was  lawfully  in  the  street.  In  attempting  to  cross  she  was  struck  by 
the  horse  on  the  defendant's  car  and  was  run  over  and  killed.  The 
evidence  would  have  justified  the  jury  in  finding  that,  when  the  child 
stepped  down  from  the  curbstone,  the  car  was  fifty  or  more  feet  away, 
and  the  distance  from  the  curbstone  to  the  track  of  defendant's  road 
was  less  than  twelve  feet.  The  child,  if  she  saw  the  car,  might  very- 
well  have  supposed  that  she  could  get  over  the  track  before  the  car 
passed.  There  is  evidence  that  the  speed  of  the  car  was  increased  at 
about  the  time  the  child  started  to  cross.  It  was,  we  think,  for  the 
jury  to  say  whether  the  child's  conduct  was  unusual  or  unnatural 
for  a  child  of  her  years.  She  probably  did  not  appreciate  the  rapidity 
of  movement  of  the  car,  nor  could  it  be  expected  that  she  would 
weigh  the  circumstances  or  fully  understand  the  danger  of  attempt- 
ing to  cross  in  front  of  the  car.  The  negligence  of  the  defendant's 
driver  is  conceded,  and  it  was  for  the  jury  to  judge  whether  the  con- 
duct  of  the  child  in  crossing  the  street  to  join  another  child  engaged 
in  roller  skating  on  the  opposite  side  was  characterized  by  any  want  of 
that  degree  of  care  which  children  under  similar  circumstances  would 
usually  exercise.  There  is  no  question  in  the  case  of  negligence  on  the 
part  of  the  parent  of  the  child.  The  point  was  not  presented  on  the 
motion  for  nonsuit. 

The  judgment  should  be  reversed  and  a  new  trial  granted.  All 
concur. 

Judgment  reversed. 


366  NEGLIGENCE 

5.  IMPUTED  NEGLIGENCE  2B 


WENTWORTH  v.  TOWN  OF  WATERBURY. 

(Supreme  Court  of  Vermont,  1916.    96  Atl.  334.) 

HASELTON,  J.  On  Sunday,  October  11,  1915,  in  the  early  evening, 
the  plaintiff,  his  wife,  and  a  young  woman,  and  one  Gibson,  were 
riding  in  an  automobile.  Gibson  was  the  driver.  At  a  culvert  in  the 
town  of  Waterbury  the  automobile  went  over  and  down  an  embank- 
ment, and  the  plaintiff  was  injured.  Suit  was  brought  against  the 
town  on  the  ground  that  the  culvert  was  insufficient,  and  that  the 
accident  was  due  to  such  insufficiency.  Trial  by  jury  was  had,  with 
the  result  that  verdict  and  judgment  were  for  the  plaintiff.  The  de- 
fendant excepted.  The  defendant  at  the  close  of  the  plaintiff's  evi- 
dence, and  of  all  the  evidence,  moved  for  the  direction  of  a  verdict  in 
its  favor  on  various  grounds,  among  which  was,  in  substance,  this : 
That  on  all  the  evidence,  viewed  in  the  light  most  favorable  to  the 
plaintiff,  the  driver  of  the  vehicle  was  guilty  of  negligence  which  con- 
tributed to  the  accident,  and  that,  as  matter  of  law,  such  negligence 
was  attributable  to  the  plaintiff. 

As  the  automobile  approached  a  culvert  where  there  was  some 
change  in  the  course  of  the  road,  a  horse  and  wagon  were  standing 
diagonally  across  the  road  between  the  rails  on  the  embankment  over 
the  culvert  The  testimony,  viewed  in  the  light  most  favorable  to  the 
plaintiff,  tended  to  show  that  the  rear  wheels  of  the  wagon  were  three 
or  four  feet  from  the  railing  on  the  easterly  side;  that  the  horse's 
head  was  nearer  than  that  to  the  railing  on  the  westerly  side ;  that  the 
driver  of  the  automobile  first  saw  the  horse  and  wagon  when  he  was 
about  fifteen  feet  therefrom;  that  he  then  applied  the  brakes  and 
turned  io  the  left,  where  there  was  more,  though  insufficient,  room,  and 
brought  the  car  practically  to  a  standstill  opposite  the  team,  when  the 
car  slipped  against  the  guard  rail,  which  gave  way  in  consequence  of 
insufficiency,  so  that  the  car  and  its  occupants,  including  the  plaintiff, 
were  precipitated  down  the  embankment,  and  the  plaintiff  received 
the  injuries  complained  of. 

The  driver  was  guilty  of  contributory  negligence,  as  matter  of  law, 
for  the  physical  facts  shown  by  the  exhibits,  and  the  testimony  most 
favorable  to  the  plaintiff,  make  it  entirely  clear  that,  if  he  had  used 
his  senses  to  a  reasonable  degree,  and  driven  with  due  care,  he  could 
and  should  and  would  have  seen  so  far  ahead  that  the  accident  would 
have  been  avoided.  Harrington  v.  Rutland  R.  Co.,  89  Vt.  112,  119, 
94  Atl.  431 ;  Labelle  v.  C.  V.  Ry.  Co.,  87  Vt.  87,  88  Atl.  517. 

2=  For  discussion  of  principles,  see  Chapin  on  Torts,  §  113. 


CONTRIBUTORY   NEGLIGENCE  3G7 

It  was  the  statutory  duty  of  the  operator  of  the  car,  when  approach- 
ing the  curve  in  the  road,  to  have  the  vehicle  under  perfect  control. 
Acts  1912,  No.  141.  And  here  he  had  notice  of  the  turn  or  curve  be- 
fore he  reached  it;  for,  as  he  testifies,  he  noticed  that  his  headlights 
were  shining,  not  onto  the  road,  but  into  bushes  beside  the  road,  and 
this,  by  an  invariable  law  of  nature,  was  notice  of  a  curve  in  the  road. 
Automobile  cases  in  point  are  Knoxville  &  Co.  v.  Vangilder,  132 
Tenn.  487,  178  S.  W.  1117,  L.  R.  A.  1916A,  1111;  Tenor  and  Brom- 
mer  v.  Pennsylvania  R.  Co.,  179  Fed.  577,  103  C.  C.  A.  135,  29  L.  R. 
A.  (N.  S.)  924. 

Was  the  negligence  of  the  driver  imputable  to  the  plaintiff?  Were 
we  to  follow  what  is  said  in  Carlisle  v.  Sheldon,  38  Vt.  440,  which 
adopts  the  reasoning  of  Thorogood  v.  Bryan,  8  C.  B.  115,  we  should 
be  obliged  to  hold  that  the  passenger  in  a  vehicle,  whether  public  or 
private,  is  so  identified  with  the  driver,  by  virtue  of  that  association 
merely,  that  the  negligence  of  the  driver  is  imputable  to  the  passenger. 
But  the  unsoundness  of  the  reasoning  in  those  cases  has  been  dem- 
onstrated over  and  over  again.  It  is  sufficient  here  to  refer  to  Little 
v.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  391,  29  L.  Ed.  652.  ' 

We  now  consider  the  question  of  whether  the  plaintiff  and  the  driver 
were  so  associated  in  the  execution  of  a  common  purpose  and  under- 
taking as  to  make  each  the  agent  of  the  other  and  to  make  the  neg- 
ligence of  one  attributable  to  the  other. 

Mr.  Gibson  testified  that  an  automobile  party  consisting  of  four, 
Mrs.  Wentworth  and  a  Miss  Griffin,  Mr.  Wentworth,  and  himself, 
started  from  Fayston  in  the  afternoon  of  Sunday,  October  11,  1914, 
and  went  to  Burlington  for  a  ride,  that  they  went  for  the  purpose  of 
showing  Lake  Champlain  to  Mrs.  Wentworth  and  Miss  Griffin;  that 
they  drove  to  the  water  front,  drove  around  for  a  short  time,  and  then 
started  back  over  the  road  they  had  gone  over ;  and  that  the  accident 
in  question  took  place  about  a  mile  northerly  of  Waterbury.  According 
to  his  testimony  the  automobile  was  his  father's,  and  not  his;  he  was 
in  Fayston  temporarily  on  a  lumber  job.  On  the  trip  the  plaintiff, 
Wentworth,  sat  with  Gibson  on  the  front  seat,  and  Gibson's  testimony 
that  they  took  the  trip  for  the  purpose  of  showing  Lake  Champlain  to 
the  ladies,  and  his  entire  testimony  as  a  whole  indicates  that  he  and 
Mr.  Wentworth,  the  plaintiff,  were  engaged  in  the  joint  purpose  of 
taking  the  two  ladies  for  an  afternoon's  ride.  The  testimony  of  Mrs. 
Wentworth  indicated  the  same  thing,  as  did  also  that  of  Mr.  Went- 
worth, the  plaintiff.  Miss  Griffin  did  not  testify,  and  there  was  no 
evidence  as  to  the  nature  of  the  undertaking  other  than  that  of  the 
three  witnesses  mentioned.  Mr.  Gibson  testified  in  one  place  that  the 
others  of  the  party  were  his  guests,  but  the  word  "guests"  was  put 
into  his  mouth  by  a  question,  and  his  testimony  indicates  that  there 
was  nothing  more  to  that  than  that  he  drove.  The  testimony  of  all  was 
to  the  effect  that  they  went  together  for  a  ride. 


3G8  NEGLIGENCE 

In  the  view  which  we  are  inclined  to  think  the  case  permits  us  to 
take,  the  plaintiff  and  Mr.  Gibson  were  engaged  in  carrying  out  a 
common  purpose,  and  the  negligence  of  each  was,  on  well-settled  and 
rational  principles,  imputable  to  the  other.  Boyden  v.  Fitchburg  R. 
Co.,  72  Vt.  89,  47  Atl.  409,  and  cases  and  notes  herein  elsewhere 
referred  to.  It  may  well  be  that  Carlisle  v.  Sheldon,  38  Vt.  440,  was 
rightly  decided  on  the  ground  just  referred  to. 

But,  if  this  view  of  the  transcript  is  not  warranted,  then  the  plain- 
tiff is  prevented  from  recovering  because  it  is  not  possible  to  say  that 
the  case  tends  to  show  that  the  plaintiff  was  himself  free  from  con- 
tributory negligence.  His  own  testimony  is  that  he  saw  the  horse  and 
wagon  standing  diagonally  across  the  road  when  the  automobile  was 
from  8  to  12  rods  away,  and  there  is  no  suggestion  in  the  case  that 
he  mentioned  that  fact  to  the  driver  or  did  anything  but  to  sit  supine 
and  mute  beside  him  on  the  front  seat  while  the  car  went  forward 
with  unslackened  speed.  Even  though  we  regard  the  two  as  not 
engaged  in  a  common  enterprise,  the  plaintiff  was  not  excused  from 
taking  reasonable  measures  for  his  own  protection.  Landrum  v.  St. 
Louis,  etc.,  Ry.  Co.  (Mo.  App.)  178  S.  W.  273,  276;  Clarke  v.  Con- 
necticut Co.,  83  Conn.  219,  76  Atl.  523;  Shultz  v.  Old  Colony  St.  Ry., 
193  Mass.  309,  323,  79  N.  E.  873,  877,  878,  8  L.  R.  A.  (N.  S.)  597, 
118  Am.  St.  Rep.  502,  9  Ann.  Cas.  402;  Smith  v.  Maine  Central  R. 
Co.,  87  Me.  339,  32  Atl.  967;  Whitman  v.  Fisher,  98  Me.  575,  57 
Atl.  895 ;  Brickell  v.  New  York,  etc.,  R.  Co.,  120  N.  Y.  290,  24  N. 
E.  449,  17  Am.  St.  Rep.  648;  Brommer  v.  Pennsylvania  R.  Co.,  179 
Fed.  577,  103  C.  C.  A.  135,  29  L.  R.  A.  (N.  S.)  924,  19  Ann.  Cas. 
1225,  note,  subheading  "Care  Required  of  Occupant";  Cotton  v. 
Willmar,  99  Minn.  366,  109  N.  W.  835,  8  L.  R.  A.  (N.  S.)  643,  116 
Am.  St.  Rep.  422,  9  Ann.  Cas.  935,  938;  Colorado,  etc.,  Co.  v.  Thom- 
as, 33  Colo.  517,  81  Pac.  801,  70  L.  R.  A.  681,  3  Ann.  Cas.  700,  and 
note  704. 

If  the  burden  of  showing  contributory  negligence  had  been  on  the 
defendant,  we  might  think  that  here  the  question  of  the  plaintiff's 
contributory  negligence  was  for  the  jury.  But  in  this  state  such  bur- 
den is  on  a  plaintiff,  and  certainly  the  plaintiff  wholly  failed  to  sustain 
the  burden  of  showing  that  he  was  personally  free  from  contributory 
negligence,  for  in  the  state  of  the  evidence  it  could  not  fairly  and  rea- 
sonably be  inferred  that  he  was  so  free. 

This  ground  of  the  motion  for  a  verdict,  though  argued  by  the  de- 
fendant here,  was  not  specifically  pointed  out  in  the  motion,  and,  if 
available  at  all,  is  available  under  the  ninth  ground,  namely,  that  "on 
all  the  evidence  in  the  case  the  plaintiff  is  not  entitled  to  recover." 
This  might  not  be  deemed  sufficient  if  it  did  not  appear  that  the  court 
had  in  mind  the  necessity  of  the  plaintiff's  showing  himself  personally 
free  from  contributory  negligence.  But  it  appears  that  the  court  did 
have  in  mind  such  necessity,  but  took  the  course  of  submitting  the 


CONTRIBUTORY  NEGLIGENCE  369 

matter  to  the  jury.     In  such  circumstances  we  think  that  the  general 
ground  of  the  motion  avails  to  raise  the  question. 

Judgment  reversed,  and  judgment  for  the  defendant  to  recover  its 
costs. 


NEWMAN  v.  PHILLIPSBURGH  HORSE  CAR  R.  CO. 

(Supreme  Court  of  New  Jersey,  1890.     52  N.  J.  Law,  446,  19  Atl.  1102, 
8  L.  R.  A.  842.) 

The  plaintiff  was  a  child  2  years  of  age.  She  was  in  the  custody  of 
her  sister,  who  was  22.  The  former,  being  left  by  herself  for  a  few 
minutes,  got  upon  the  railroad  track  of  the  defendant,  and  was  hurt 
by  the  car.  The  occurrence  took  place  in  a  public  street  of  the  vil- 
lage of  Phillipsburgh.  The  carelessness  of  the  defendant  was  mani- 
fest, as  at  the  time  of  the  accident  there  was  no  one  in  charge  of  the 
horse  drawing  the  car;  the  driver  being  in  the  car,  collecting  fares. 
The  circuit  judge  submitted  the  three  following  propositions  to  this 
court  for  its  advisory  opinion,  viz. :  "First,  whether  the  negligence  of 
the  persons  in  charge  of  the  plaintiff,  an  infant  minor,  should  be  im- 
puted to  the  said  plaintiff ;  second,  whether  the  conduct  of  the  persons 
in  charge  of  the  plaintiff  at  the  time  of  the  injury  complained  of  was 
not  so  demonstrably  negligent  that  the  said  circuit  court  should  have 
nonsuited  the  plaintiff,  or  that  the  court  should  have  directed  the  jury 
to  find  for  the  defendant."  26 

BEASLEY,  C.  J.  There  is  but  a  single  question  presented  by  this 
case,  and  that  question  plainly  stands  among  the  vexed  questions  of 
the  law.  The  problem  is  whether  an  infant  of  tender  years  can  be 
vicariously  negligent,  so  as  to  deprive  itself  of  a  remedy  that  it  would 
otherwise  be  entitled  to.  In  some  of  the  American  states  this  question 
has  been  answered  by  the  courts  in  the  affirmative,  and  in  others  in 
the  negative.  To  the  former  of  these  classes  belongs  the  decision  in 
Hartfield  v.  Roper,  reported  in  21  Wend.  (N.  Y.)  615,  34  Am.  Dec. 
273.  This  case  appears  to  have  been  one  of  first  impression  on  this  sub- 
ject;  and  it  is  to  be  regarded  not  only  as  the  precursor,  but  as  the 
parent,  of  all  the  cases  of  the  same  strain  that  have  since  appeared. 
The  inquiry,  with  respects  to  the  effect  of  the  negligence  of  the  cus- 
todian of  the  infant,  too  young  to  be  intelligent  of  situations  and  cir- 
cumstances, was  directly  presented  for  decision  in  the  primary  case 
thus  referred  to ;  for  the  facts  were  these,  viz. :  The  plaintiff,  a  child 
of  about  two  years  of  age,  was  standing  or  sitting  in  the  snow  in  a 
public  road,  and  in  that  situation  was  run  over  by  a  sleigh  driven 
by  the  defendants.  The  opinion  of  the  court  was  that,  as  the  child 
was  permitted  by  its  custodian  to  wander  into  a  position  of  such 

*«  The  statement  of  facts  is  abridged. 
CHAP.CAS.TOBTS — 24 


370  NEGLIGENCE 

danger,  it  was  without  remedy  for  the  hurts  thus  received  unless  they 
were  voluntarily  inflicted,  or  were  the  product  of  gross  carelessness  on 
the  part  of  the  defendants.  It  is  obvious  that  the  judicial  theory  was 
that  the  infant  was,  through  the  medium  of  its  custodian,  the  door,  in 
part,  of  its  own  misfortune,  and  that  consequently,  by  force  of  the 
well-known  rule  under  such  conditions,  he  had  no  right  to  an  action. 
This  of  course,  was  visiting  the  child  for  the  neglect  of  the  custodian ; 
and  such  infliction  is  justified  in  the  case  cited  in  this  wise:  "An  in- 
fant," says  the  court,  "is  not  sui  juris.  .  He  belongs  to  another,  to  whom 
discretion  in  the  care  of  his  person  is  exclusively  confided.  That  per- 
son is  keeper  and  agent  for  this  purpose;  and,  in  respect  to  third 
persons,  his  act  must  be  deemed  that  of  the  infant;  his  neglect,  the 
infant's  neglect."  It  will  be  observed  that  the  entire  context  of  this 
quotation  is  the  statement  of  a  single  fact,  and  a  deduction  from  it; 
the  premises  being  that  the  child  must  be  in  the  care  and  charge  of  an 
adult,  and  the  inference  being  that  for  that  reason  the  neglects  of  the 
adult  are  the  neglects  of  the  infant.  But  surely  this  is  conspicuously  a 
non  sequitur.  How  does  the  custody  of  the  infant  justify  or  lead  to 
the  imputation  of  another's  fault  to  him?  The  law,  natural  and  civil, 
puts  the  infant  under  the  care  of  the  adult ;  but  how  can  this  right  to 
care  for  and  protect  be  construed  into  a  right  to  waive  or  forfeit  any 
of  the  legal  rights  of  the  infant?  The  capacity  to  make  such  waiver 
or  forfeiture  is  not  a  necessary  or  even  convenient  incident  of  this 
office  of  the  adult,  but,  on  the  contrary,  is  quite  inconsistent  with  it; 
for  the  power  to  protect  is  the  opposite  of  the  power  to  harm,  either 
by  act  or  omission.  In  this  case,  in  21  Wend.  (N.  Y.)  615,  34  Am. 
Dec.  273,  it  is  evident  that  the  rule  of  law  enunciated  by  it  is  founded 
on  the  theory  that  the  custodian  of  the  infant  is  the  agent  of  the 
infant,  but  this  is  a  mere  assumption  without  legal  basis ;  for  such 
custodian  is  the  agent,  not  of  the  infant,  but  of  the  law.  If  such 
supposed  agency  existed,  it  would  embrace  many  interests  of  the  in- 
fant, and  could  not  be  confined  to  the  single  instance  when  an  injury 
is  inflicted  by  the  co-operative  tort  of  the  guardian.  And  yet  it  seems 
certain  that  such  custodian  cannot  surrender  or  impair  a  single  right 
of  any  kind  that  is  vested  in  the  child,  nor  impose  any  legal  burden 
upon  it.  If  a  mother,  traveling  with  her  child  in  her  arms,  should 
agree  with  a  railway  company  that,  in  case  of  an  accident  to  such  in- 
fant by  reason  of  the  joint  negligence  of  herself  and  the  company, 
the  latter  should  not  be  liable  to  a  suit  by  the  child,  such  an  engage- 
ment would  be  plainly  invalid  on  two  grounds :  First,  the  contract 
would  be  contra  bonos  mores;  and,  second,  because  the  mother  was 
not  the  agent  of  the  child  authorized  to  enter  into  the  agreement. 
Nevertheless  the  position  has  been  deemed  defensible  that  the  same 
evil  consequences  to  the  infant  will  follow  from  the  negligence  of  the 
mother,  in  the  absence  of  such  supposed  contract,  as  would  have 


CONTRIBUTORY   NEGLIGENCE  371 

resulted  if  such  contract  should  have  been  made,  and  should  have  been 
held  valid. 

In  fact,  this  doctrine  of  the  imputability  of  the  misfeasance  of  the 
keeper  of  a  child  to  the  child  itself  is  deemed  to  be  a  pure  interpola- 
tion into  the  law ;  for,  until  the  case  under  criticism,  it  was  absolutely 
unknown,  nor  is  it  sustained  by  legal  analogies.  Infants  have  always 
been  the  particular  objects  of  the  favor  and  protection  of  the  law.  In 
the  language  of  an  ancient  authority,  this  doctrine  is  thus  expressed: 
"The  common  principle  is  that  an  infant,  in  all  things  which  sound 
in  his  benefit,  shall  have  favor  and  preferment  in  law  as  well  as  an- 
other man,  but  shall  not  be  prejudiced  by  anything  to  his  disadvan- 
tage." 9  Vin.  Abr.  374.  And  it  would  appear  to  be  plain  that  nothing 
could  be  more  to  the  prejudice  of  an  infant  than  to  convert,  by  con- 
struction of  law,  the  connection  between  himself  and  his  custodian 
into  agency,  to  which  the  harsh  rule  of  respondeat  superior  should  be 
applicable.  The  answerableness  of  the  principal  for  the  authorized 
acts  of  his  agent  is  not  so  much  the  dictate  of  natural  justice  as  of 
public  policy,  and  has  arisen,  with  some  propriety,  from  the  circum- 
stances that  the  creation  of  the  agency  is  a  voluntary  act,  and  that  it 
can  be  controlled  and  ended  at  the  will  of  its  creator.  But  in  the  rela- 
tionship between  the  infant  and  its  keeper  all  these  decisive  character- 
istics are  wholly  wanting.  The  law  imposes  the  keeper  upon  the  child, 
who  of  course  can  neither  control  nor  remove  him,  and  the  injustice, 
therefore,  of  making  the  latter  responsible  in  any  measure  whatever 
for  the  torts  of  the  former  would  seem  to  be  quite  evident.  Such 
subjectivity  would  be  hostile  in  every  respect  to  the  natural  rights 
of  the  infant,  and  consequently  cannot  with  any  show  of  reason  be  in- 
troduced into  that  provision  which  both  necessity  and  law  establish 
for  his  protection.  Nor  can  it  be  said  that  its  existence  is  necessary  to 
give  just  enforcement  to  the  rights  of  others.  When  it  happens  that 
both  the  infant  and  its  custodian  have  been  injured  by  the  co-operative 
negligence  of  such  custodian  and  a  third  party,  it  seems  reasonable, 
at  least  in  some  degree,  that  the  latter  should  be  enabled  to  say  to  the 
custodian,  You  and  I,  by  our  common  carelessness,  have  done  this 
wrong,  and,  therefore,  neither  can  look  to  the  other  for  redress;  but 
when  such  wrongdoer  says  to  the  infant,  Your  guardian  and  I,  by 
our  joint  misconduct,  have  brought  this  loss  upon  you,  consequently 
you  have  no  right  of  action  against  me,  but  you  must  look  for  in- 
demnification to  your  guardian  alone,  a  proposition  is  stated  that  ap- 
pears to  be  without  any  basis  either  in  good  sense  or  law.  The  con- 
version of  the  infant,  who  is  entirely  free  from  fault,  into  a  wrong- 
doer, by  imputation,  is  a  logical  contrivance  uncongenial  with  the  spirit 
of  jurisprudence.  The  sensible  and  legal  doctrine  is  this:  An  infant 
of  tender  years  cannot  be  charged  with  negligence;  nor  can  he  be  so 
charged  with  the  commission  of  such  fault  by  substitution,  for  he  is 
incapable  of  appointing  an  agent,  the  consequence  being  that  he  can, 


372  NEGLIGENCE 

in  no  case,  be  considered  to  be  the  blamable  cause,  either  in  whole  or 
in  part,  of  his  own  injury.  There  is  no  injustice  nor  hardship  in  re- 
quiring all  wrongdoers  to  be  answerable  to  a  person  who  is  incapable 
either  of  self-protection  or  of  being  a  participator  in  their  misfeasance. 
Nor  is  it  to  be  overlooked  that  the  theory  here  repudiated,  if  it  should 
be  adopted,  would  go  to  the  length  of  making  an  infant  in  its  nurse's 
arms  answerable  for  all  the  negligence  of  such  nurse  while  thus  em- 
ployed in  its  service.  Every  person  so  damaged  by  the  careless  cus- 
todian would  be  entitled  to  his  action  against  the  infant.  If  the  neg- 
lects of  the  guardian  are  to  be  regarded  as  the  neglects  of  the  infant, 
as  was  asserted  in  the  New  York  decision,  it  would,  from  logical  neces- 
sity, follow  that  the  infant  must  indemnify  those  who  should  be  harm- 
ed by  such  neglects.  That  such  a  doctrine  has  never  prevailed  is  con- 
clusively shown  by  the  fact  that  in  the  reports  there  is  no  indication 
that  such  a  suit  has  ever  been  brought. 

It  has  already  been  observed  that  judicial  opinion  touching  the  sub- 
ject just  discussed  is  in  a  state  of  direct  antagonism,  and  it  would  there- 
fore serve  no  useful  purpose  to  refer  to  any  of  them.  It  is  sufficient 
to  say  that  the  leading  text-writers  have  concluded  that  the  weight  of 
such  authority  is  adverse  to  the  doctrine  that  an  infant  can  become,  in 
any  wise,  a  tort-feasor  by  imputation.  1  Shearm.  &  R.  Neg.  §  75; 
Whart.  Neg.  §  311;  2  Wood,  Railw,  L.,  p.  1284. 

In  our  opinion,  the  weight  of  reason  is  in  the  same  scale. 

It  remains  to  add  that  we  do  not  think  the  damages  so  excessive 
as  to  place  the  verdict  under  judicial  control. 

Let  the  Circuit  Court  be  advised  to  render  judgment  on  the  finding 
of  the  jury. 


NUISANCE  373 


NUISANCE 
L  Public  and  Private  Nuisance11 

WESSON  v.  WASHBURN  IRON  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1866.    13  Allen,  95, 
90  Am.  Dec.  181.) 

Tort.  The  first  count  of  the  declaration  alleged  that  the  plaintiff 
was  owner  of  a  freehold  estate  in  a  messuage  and  dwelling  house  in 
Worcester,  contiguous  to  the  land  and  buildings  of  the  defendants, 
and  occupied  as  a  dwelling  house  for  the  plaintiff's  tenants ;  and  the 
defendants  wrongfully  kept  and  continued  certain  buildings,  called 
and  used  for  a  rolling  mill  and  foundry,  next  easterly  from  the  land  of 
the  plaintiff,  and  occupied  by  the  defendants  for  the  manufacture  of 
railroad  iron,  and  other  articles  made  from  iron  and  steel,  and  kept 
and  used  large  stationary  steam  engines,  trip  hammers,  rolling  mills 
and  other  machinery  and  furnaces  for  the  melting  of  iron,  etc.,  by 
night  as  well  as  by  day,  and  made  large  quantities  of  railroad  iron, 
and  other  articles  made  from  iron  and  steel,  and  thereby,  and  by  the 
action  and  motion  of  the  said  engines,  mills  and  machinery,  the  ground 
and  dwelling  house  of  the  plaintiff  were  greatly  shaken  and  jarred,  so 
that  the  house  was  greatly  shaken  to  pieces  and  rendered  uncomforta- 
ble and  unfit  for  habitation  and  of  no  value. 

The  second  count  contained  similar  allegations  in  regard  to  another 
messuage  and  dwelling  house,  known  as  the  Wesson  Tavern  House, 
with  additional  averments  that  the  defendants  consumed  large  quan- 
tities of  coal,  by  means  of  which  large  quantities  of  coal  dust,  smoke 
and  ashes,  noisome  and  offensive,  rose  and  issued  from  the  defend- 
ants' buildings  and  entered  into  and  diffused  themselves  over  and 
through  the  plaintiffs'  premises,  rendering  the  same  uncomfortable 
and  unfit  for  habitation,  and  depriving  her  of  the  gains  which  she 
otherwise  would  have  made. 

The  answer  denied  all  wrongful  acts  on  the  part  of  the  defendants, 
and  all  injury  to  the  plaintiff. 

At  the  trial  *  *  *  the  plaintiff  requested  the  court  to  instruct 
the  jury  that  if  her  dwelling  house  was  injured  by  jarring  and  shak- 
ing, and  rendered  unfit  f or,  habitation  by  smoke,  cinders,  dust  and  gas 
from  the  defendants'  works,  it  was  no  defence  to  the  action  that  many 
other  houses  in  the  neighborhood  were  affected  in  a  similar  way. 
But  the  judge  declined  so  to  rule,  and  instructed  the  jury,  in  accord- 
ance with  the  request  of  the  defendants,  that  the  plaintiff  could  not 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §§  114,  115. 


374  NUISANCE 

maintain  this  action  if  it  appeared  that  the  damage  which  the  plaintiff 
had  sustained  in  her  estate  was  common  to  all  others  in  the  vicinity; 
but  it  must  appear  that  she  had  sustained  some  special  damage,  differ- 
ing in  kind  and  degree  from  that  common  to  all  others  in  the  neigh- 
borhood. 

The  jury  returned  a  verdict  for  the  defendants,  and  the  plaintiff 
alleged  exceptions. 

BIGELOW,  C.  j.2  *  *  *  There  can  be  no  doubt  of  the  truth  of 
the  general  principle  stated  by  the  court,  that  a  nuisance  may  exist 
which  occasions  an  injury  to  an  individual,  for  which  an  action  can- 
not be  maintained  in  his  favor,  unless  he  can  show  some  special  dam- 
age in  his  person  or  property,  differing  in  kind  and  degree  from  that 
which  is  sustained  by  other  persons  who  are  subjected  to  inconvenience 
and  injury  from  the  same  cause.  The  difficulty  lies  in  the  application 
of  this  principle.  The  true  limit,  as  we  understand  it,  within  which  its 
operation  is  allowed,  is  to  be  found  in  the  nature  of  the  nuisance 
which  is  the  subject  of  complaint.  If  the  right  invaded  or  impaired  is 
a  common  and  public  one,  which  every  subject  of  the  state  may  exer- 
cise and  enjoy,  such  as  the  use  of  a  highway,  or  canal,  or  public  land- 
ing place,  or  a  common  watering  place  on  a  stream  or  pond  of  water, 
in  all  such  cases  a  mere  deprivation  or  obstruction  of  the  use  which 
excludes  or  hinders  all  persons  alike  from  the  enjoyment  of  the  com- 
mon right,  and  which  does  not  cause  any  special  or  peculiar  damage 
to  any  one,  furnishes  no  valid  cause  of  action  in  favor  of  an  individual, 
although  he  may  suffer  inconvenience  or  delay  greater  in  degree 
than  others  from  the  alleged  obstruction  or  hindrance.  The  private 
injury,  in  this  class  of  cases,  is  said  to  be  merged  in  the  common  nui- 
sance and  injury  to  all  citizens,  and  the  right  is  to  be  vindicated  and 
the  wrong  punished  by  a  public  prosecution,  and  not  by  a  multiplicity 
of  separate  actions  in  favor  of  private  individuals.  Several  instances 
of  the  application  of  this  rule  are  to  be  found  in  our  own  reports. 
Stetson  v.  Faxon,  19  Pick.  147,  31  Am.  Dec.  123  ;  Thayer  v.  Boston,  19 
Pick.  511,  514,  31  Am.  Dec.  157;  Quincy  Canal  v.  Newcomb,  7 
Mete.  276,  283,  39  Am.  Dec.  778;  Holman  v.  Townsend,  13  Mete. 
297,  299;  Smith  v.  Boston,  7  Cush.  254;  Brainard  v.  Connecticut 
River  Railroad,  7  Cush.  506;  Blood  v.  Nashua  &  L.  R.  Corp.,  2  Gray, 
140,  61  Am.  Dec.  444;  Brightman  v.  Fairhaven,  7  Gray,  271 ;  Harvard 
College  v.  Stearns,  15  Gray,  1;  Willard  v.  Cambridge,  3  Allen,  574; 
Hartshorn  v.  South  Reading,  Id.  501 ;  Fall  River  Iron  Works  Co.  v. 
Old  Colony  &  Fall  River  Railroad,  5  Allen,  224. 

But  it  will  be  found  that,  in  all  these  cases,  and  in  others  in  which 
the  same  principle  has  been  laid  down,  it  has  been  applied  to  that  class 
of  nuisances  which  have  caused  a  hindrance  or  obstruction  in  the 
exercise  of  a  right  which  is  common  to  every  person  in  the  community, 
and  that  it  has  never  been  extended  to  cases  where  the  alleged  wrong 

2  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  omitted. 


PUBLIC   AND   PEIVATE   NUISANCE  375 

is  done  to  private  property,  or  the  health  of  individuals  is  injured,  or 
their  peace  and  comfort  in  their  dwellings  is  impaired  by  the  carrying 
on  of  offensive  trades  and  occupations  which  create  noisome  smells 
or  distributing  noises,  or  cause  other  annoyances  and  injuries  to  per- 
sons and  property  in  the  vicinity,  however  numerous  or  extensive 
may  be  the  instances  of  discomfort,  inconvenience,  and  injury  to  per- 
sons and  property  thereby  occasioned.  Where  a  public  right  or  priv- 
ilege common  to  every  person  in  the  community  is  interrupted  or  in- 
terfered with,  a  nuisance  is  created  by  the  very  act  of  interruption  or 
interference,  which  subjects  the  party  through  whose  agency  it  is  done 
to  a  public  prosecution,  although  no  actual  injury  or  damage  may  be 
thereby  caused  to  any  one.  If,  for  example,  a  public  way  is  ob- 
structed, the  existence  of  the  obstruction  is  a  nuisance,  and  punishable 
as  such,  even  if  no  inconvenience  or  delay  to  public  travel  actually 
takes  place.  It  would  not  be  necessary,  in  a  prosecution  for  such  a 
nuisance,  to  show  that  any  one  had  been  delayed  or  turned  aside.  The 
offense  would  be  complete,  although  during  the  continuance  of  the  ob- 
struction no  one  had  had  occasion  to  pass  over  the  way.  The  wrong 
consists  in  doing  an  act  inconsistent  with  and  in  derogation  of  the 
public  or  common  right.  It  is  in  cases  of  this  character  that  the  law 
does  not  permit  private  actions  to  be  maintained  on  proof  merely  of 
a  disturbance  in  the  enjoyment  of  the  common  right,  unless  special 
damage  is  also  shown,  distinct  not  only  in  degree  but  in  kind  from  that 
which  is  done  to  the  whole  public  by  the  nuisance. 

But  there  is  another  class  of  cases  in  which  the  essence  of  the 
wrong  consists  in  an  invasion  of  private  right,  and  in  which  the  pub- 
lic offense  is  committed,  not  merely  by  doing  an  act  which  causes  in- 
jury, annoyance  and  discomfort  to  one  or  several  persons  who  may 
come  within  the  sphere  of  its  operation,  or  influence,  but  by  doing 
it  in  such  place  and  in  such  manner  that  the  aggregation  of  private 
injuries  becomes  so  great  and  extensive  as  to  constitute  a  public  an- 
noyance and  inconvenience,  and  a  wrong  against  the  community,  which 
may  be  properly  the  subject  of  a  public  prosecution.  But  it  has  never 
been  held,  so  far  as  we  know,  that  in  cases  of  this  character  the  in- 
jury to  private  property,  or  to  the  health  and  comfort  of  individuals, 
becomes  merged  in  the  public  wrong,  so  as  to  take  away  from  the  per- 
sons injured  the  right  which  they  would  otherwise  have  to  maintain 
actions  to  recover  damages  which  each  may  have  sustained  in  his  per- 
son or  estate  from  the  wrongful  act. 

Nor  would  such  a  doctrine  be  consistent  with  sound  principle.  Car- 
ried out  practically,  it  would  deprive  persons  of  all  redress  for  injury 
to  property  or  health,  or  for  personal  annoyance  and  discomfort,  in 
all  cases  where  the  nuisance  was  so  general  and  extensive  as  to  be  a 
legitimate  subject  of  a  public  prosecution ;  so  that  in  effect  a  wrong- 
doer would  escape  all  liability  to  make  indemnity  for  private  injuries 


376  NUISANCE 

by  carrying  on  an  offensive  trade  or  occupation  in  such  place  and  man- 
ner as  to  cause  injury  and  annoyance  to  a  sufficient  number  of  per- 
sons to  create  a  common  nuisance. 

The  real  distinction  would  seem  to  be  this :  That  when  the  wrongful 
act  is  of  itself  a  disturbance  or  obstruction  only  to  the  exercise  of  a 
common  and  public  right,  the  sole  remedy  is  by  public  prosecution, 
unless  special  damage  is  caused  to  individuals.  In  such  case  the  act 
of  itself  does  no  wrong  to  individuals  distinct  from  that  done  to  the 
whole  community.  But  when  the  alleged  nuisance  would  constitute 
a  private  wrong  by  injuring  property  or  health,  or  creating  personal 
inconvenience  and  annoyance,  for  which  an  action  might  be  main- 
tained in  favor  .of  a  person  injured,  it  is  none  the  less  actionable  be- 
cause the  wrong  is  committed  in  a  manner  and  under  circumstances 
which  would  render  the  guilty  party  liable  to  indictment  for  a  common 
nuisance.  This  we  think  is  substantially  the  conclusion  to  be  derived 
from  a  careful  examination  of  the  adjudged  cases.  The  apparent  con- 
flict between  them  can  be  reconciled  on  the  ground  that  an  injury  to 
private  property,  or  to  the  health  and  comfort  of  an  individual,  is  in  its 
nature  special  and  peculiar,  and  does  not  cause  a  damage  which  can 
properly  be  said  to  be  common  or  public,  however  numerous  may  be 
the  cases  of  similar  damage  arising  from  the  same  cause.  Certainly 
multiplicity  of  actions  affords  no  good  reason  for  denying  a  person  all 
remedy  for  actual  loss  and  injury  which  he  may  sustain  in  his  person 
or  property  by  the  unlawful  acts  of  another,  although  it  may  be  a  valid 
ground  for  refusing  redress  to  individuals  for  a  mere  invasion  of  a 
common  and  public  right. 

The  rule  of  law  is  well  settled  and  familiar,  that  every  man  is  bound 
to  use  his  own  property  in  such  manner  as  not  to  injure  the  property 
of  another,  or  the  reasonable  and  proper  enjoyment  of  it;  and  that 
the  carrying  on  of  an  offensive  trade  or  business,  which  creates  noi- 
some smells  and  noxious  vapors,  or  causes  great  and  disturbing  noises, 
or  which  otherwise  renders  the  occupation  of  property  in  the  vicinity 
inconvenient  and  uncomfortable,  is  a.  nuisance  for  which  any  person 
whose  property  is  damaged  or  whose  health  is  injured  or  whose  rea- 
sonable enjoyment  of  his  estate  as  a  place  of  residence  is  impaired  or 
destroyed  thereby  may  well  maintain  an  action  to  recover  compensa- 
tion for  the  injury.  The  limitations  proper  to  be  made  in  the  applica- 
tion of  this  rule  are  accurately  stated  in  Bamford  v.  Turnley,  3  Best 
&  Smith',  66,  and  in  Tipping  v.  St.  Helen's  Smelting  Co.,  6  Best  & 
Smith,  608-616;  s.  c.  11  H.  L.  Cas.  642,  and  cases  there  cited.  See, 
also,  in  addition  to  cases  cited  by  the  counsel  for  the  plaintiff,  Spencer 
v.  London  &  Birmingham  Railway,  8  Sim.  193;  Soltau  v.  De  Held, 
9  Sim.  (N.  S.)  133. 

The  instructions  given  to  the  jury  were  stated  in  such  form  as  to 
lead  them  to  infer  that  this  action  could  not  be  maintained,  if  it  ap- 


NUISANCE   PER   ACCIDENTS  377 

peared  that  other  owners  of  property  in  that  neighborhood  suffered 
injury  and  damage  similar  to  that  which  was  sustained  by  the  plain- 
tiff in  her  estate  by  the  acts  of  the  defendants.  This,  as  applied  to  the 
facts  in  proof,  was  an  error,  and  renders  it  necessary  that  the  case 
should  be  tried  anew. 
Exceptions  sustained. 


II.  Nuisance  per  Accidents' 


HEEG  v.  LIGHT. 

(Court  of  Appeals  of  New  York,  1880.    80  N.  T.  579,  36  Am.  Rep.  654.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
defendant,  entered  upon  a  verdict.  (Reported  below,  16  Hun,  257.) 

This  action  was  brought  to  recover  damages  for  injuries  to  plain- 
tiff's buildings,  alleged  to  have  been  caused  by  the  explosion  of  a 
powder  magazine  on  the  premises  of  defendant;  also  to  restrain  the 
defendant  from  manufacturing  and  storing  upon  his  premises  fireworks 
or  other  explosive  substances. 

MILLER,  J.  This  action  is  sought  to  be  maintained  upon  the  ground 
that  the  manufacturing  and  storing  of  fireworks,  and  the  use  and 
keeping  of  materials  of  a  dangerous  and  explosive  character  for  that 
purpose,  constituted  a  private  nuisance,  for  which  the  defendant  was 
liable  to  respond  in  damages,  without  regard  to  the  question  whether 
he  was  chargeable  with  carelessness  or  negligence.  The  defendant 
had  constructed  a  powder  magazine  upon  his  premises,  with  the  usual 
safeguards,  in  which  he  kept  stored  a  quantity  of  powder,  which,  with- 
out any  apparent  cause,  exploded  and  caused  the  injury  complained 
of.  The  judge  upon  the  trial  charged  the  jury  that  they  must  find  for 
the  defendant,  unless  they  found  that  the  defendant  carelessly  and 
negligently  kept  the  gunpowder  upon  his  premises.  The  judge  re- 
fused to  charge  that  the  powder  magazine  was  dangerous  in  itself 
to  plaintiff  and  his  property,  and  was  a  private  nuisance  and  the  de- 
fendant was  liable  to  the  plaintiff  whether  it  was  carelessly  kept  or 
not;  and  the  plaintiff  duly  excepted  to  the  charge  and  the  refusal  to 
charge. 

We  think  that  the  charge  made  was  erroneous  and  not  warranted 
by  the  facts  presented  upon  the  trial.  The  defendant  had  erected 
a  building  and  stored  materials  therein,  which  from  their  character 
were  liable  to  and  actually  did  explode,  causing  injury  to  the  plaintiff. 
The  fact  that  the  explosion  took  place  tends  to  establish  that  the 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  116. 


378  NUISANCE 

magazine  was  dangerous  and  liable  to  cause  damage  to  the  property 
of  persons  residing  in  the  vicinity.  The  locality  4  of  works  of  this 
description  must  depend  upon  the  neighborhood  in  which  they  are 
situated.  In  a  city,  with  buildings  immediately  contiguous  and  per- 
sons constantly  passing,  there  could  be  no  question  that  such  an  erec- 
tion would  be  unlawful  and  unauthorized.  An  explosion  under  such 
circumstances,  independent  of  any  municipal  regulations,  would  render 
the  owner  amenable  for  all  damages  arising  therefrom.  That  the  de- 
fendant's establishment  was  outside  of  the  territorial  limits  of  a  city 
does  not  relieve  the  owner  from  responsibility  or  alter  the  case,  if  the 
dangerous  erection  was  in  close  contiguity  with  dwelling  houses  or 
buildings,  which  might  be  injured  or  destroyed  in  case  of  an  explo- 
sion. The  fact  that  the  magazine  was  liable  to  such  a  contingency, 
which  could  not  be  guarded  against  or  averted  by  the  greatest  degree 
of  care  and  vigilance,  evinces  its  dangerous  character,  and  might  in 
some  localities  render  it  a  private  nuisance.  In  such  a  case  the  rule 
which  exonerates  a  party  engaged  in  a  lawful  business,  when  free 
from  negligence,  has  no  application.  The  keeping  or  manufacturing 
of  gunpowder  or  of  fireworks  does  not  necessarily  constitute  a  nui- 
sance per  se.  That  depends  upon  the  locality,  the  quantity,  and  the 
surrounding  circumstances,  and  not  entirely  upon  the  degree  of  care 
used.  In  the  case  at  bar  it  should  have  been  left  for  the  jury  to  de- 
termine whether  from  the  dangerous  character  of  the  defendant's  busi- 
ness, the  proximity  to  other  buildings,  and  all  the  facts  proved  upon 
the  trial,  the  defendant  was  chargeable  with  maintaining  a  private 
nuisance  and  answerable  for  the  damages  arising  from  the  explosion. 

A  private  nuisance  is  defined  to  be  anything  done  to  the  hurt  or  an- 
noyance of  the  lands,  tenements  or  hereditaments  of  another.  3  Bl. 
Com.  216.  Any  unwarrantable,  unreasonable  or  unlawful  use  by  a 
person  of  his  own  property,  real  or  personal,  to  the  injury  of  another, 
comes  within  the  definition  stated,  and  renders  the  owner  or  possessor 
liable  for  all  damages  arising  from  such  use.  Wood's  Law  of  Nuis. 
§  1,  and  authorities  cited.  The  cases  which  are  regarded  as  private 
nuisances  are  numerous,  and  the  books  are  full  of  decisions  holding 
the  parties  answerable  for  the  injuries  which  result  from  their  being 
maintained.  The  rule  is  of  universal  application  that  while  a  man 
may  prosecute  such  business  as  he  chooses  on  his  own  premises,  he 
has  no  right  to  erect  and  maintain  a  nuisance  to  the  injury  of  an  ad- 
joining proprietor  or  of  his  neighbors,  even  in  the  pursuit  of  a  lawful 
trade.  Alfred's  Case,  9  Coke,  58;  Brady  v.  Weeks,  3  Barb.  159; 
Dubois  v.  Budlong,  15  Abb.  Prac.  445;  Wier's  Appeal,  74  Pa.  230. 

While  a  class  of  the  reported  cases  relate  to  the  prosecution  of  a 
legitimate  business,  which  of  itself  produces  inconvenience  and  injury 
to  others,  another  class  refers  to  acts  done  on  the  premises  of  the 
owner,  which  are  of  themselves  dangerous  to  the  property  and  the 

*  "Legality"  (?)  Evidently  a  misprint. 


NUISANCE   PER   ACCIDENTS  379 

person  of  others  who  may  reside  in  the  vicinity  or  who  may  by 
chance  be  passing  along  or  in  the  neighborhood  of  the  same.  Of  the 
former  class  are  cases  of  slaughterhouses,  fat  and  offal  boiling  estab- 
lishments, hog  styes,  or  tallow  manufactories,  in  or  near  a  city,  which 
are  offensive  to  the  senses  and  render  the  enjoyment  of  life  and  prop- 
erty uncomfortable.  Catlin  v.  Valentine,  9  Paige,  575,  38  Am.  Dec. 
567;  Brady  v.  Weeks,  3  Barb.  157;  Dubois  v.  Budlong,  15  Abb.  Prac. 
445;  Rex  v.  White,  1  Burr.  337;  2  Bl.  Com.  215;  Farrand  v.  Mar- 
shall, 21  Barb.  421.  It  is  not  necessary  in  these  cases  that  the  noxious 
trade  or  business  should  endanger  the  health  of  the  neighborhood.  So 
also  the  use  of  premises  in  a  manner  which  causes  a  noise  so  continu- 
ous and  excessive  as  to  produce  serious  annoyance,  or  vapors  or 
noxious  smells  (Tipping  v.  St.  Helen's  Smelting  Co.,  4  B.  &  S.  [Q. 
B.]  608;  Brill  v.  Flagler,  23  Wend.  354;  Pickard  v.  Collins,  23  Barb. 
444 ;  Wood's  Law  of  Nuis.  §  5) ;  or  the  burning  of  a  brick  kiln,  from 
which  gases  escape  which  injure  the  trees  of  persons  in  the  neighbor- 
hood (Campbell  v.  Seaman,  63  N.  Y.  568,  20  Am.  Rep.  567).  Of  the 
latter  class  also  are  those  where  the  owner  blasts  rocks  with  gunpow- 
der, and  the  fragments  are  liable  to  be  thrown  on  the  premises  and 
injure  the  adjoining  dwelling  houses,  or  the  owner  or  persons  there 
being,  or  where  persons  traveling  may  be  injured  by  such  use.  Hay 
v.  Cohoes  Co.,  3  Barb.  42;  S.  C.,  2  N.  Y.  159,  51  Am.  Dec.  279; 
Tremain  v.  Cohoes  Co.,  2  N.  Y.  163,  51  Am.  Dec.  284;  Pixley  v. 
Clark,  35  N.  Y.  523,  91  Am.  Dec.  72. 

Most  of  the  cases  cited  rest  upon  the  maxim  "sic  utere  tuo,"  etc., 
and  where  the  right  to  the  undisturbed  possession  and  enjoyment  of 
property  comes  in  conflict  with  the  rights  of  others,  that  it  is  better, 
as  a  matter  of  public  policy,  that  a  single  individual  should  surrender 
the  use  of  his  land  for  especial  purposes  injurious  to  his  neighbor  or 
to  others  than  that  the  latter  should  be  deprived  of  the  use  of  their 
property  altogether,  or  be  subjected  to  great  danger,  loss  and  injury, 
which  might  result  if  the  rights  of  the  former  were  without  any  re- 
striction or  restraint. 

The  keeping  of  gunpowder  or  other  materials  in  a  place,  or  under 
circumstances,  where  it  would  be  liable,  in  case  of  explosion,  to  injure 
the  dwelling  houses  or  the  persons  of  those  residing  in  close  proximity, 
we  think,  rests  upon  the  same  principle,  and  is  governed  by  the  same 
general  rules.  An  individual  has  no  more  right  to  keep  a  magazine 
of  powder  upon  his  premises,  which  is  dangerous,  to  the  detriment  of 
his  neighbor,  than  he  is  authorized  to  engage  in  any  other  business 
which  may  occasion  serious  consequences. 

The  counsel  for  the  defendant  relies  upon  the  case  of  People  v. 
Sands,  1.  Johns.  78,  3  Am  Dec.  296,  to  sustain  the  position  that  the 
defendant's  business  was  neither  a  public  nor  a  private  nuisance.  That 
was  an  indictment  for  keeping  a  quantity  of  gunpowder  near  dwelling 
houses  and  near  a  public  street;  and  it  was  held  (Spencer,  J.,  dissent- 


380  NUISANCE 

ing)  that  the  fact  as  charged  did  not  amount  to  a  nuisance,  and  that 
it  should  have  been  alleged  to  have  been  negligently  and  improvidently 
kept.  It  will  be  seen  that  the  case  was  disposed  of  upon  the  form 
of  the  indictment,  and  while  it  may  well  be  that  an  allegation  of  neg- 
ligence is  necessary  where  an  indictment  is  for  a  public  nuisance,  it  by 
no  means  follows  that  negligence  is  essential  in  a  private  action  to 
recover  damages  for  an  alleged  nuisance.  In  Myers  v.  Malcolm,  6 
Hill,  292,  41  Am.  Dec.  744,  it  was  held  that  the  act  of  keeping  a  large 
quantity  of  gunpowder  insufficiently  secured  near  other  buildings,  there- 
by endangering  the  lives  of  persons  residing  in  the  vicinity,  amounted 
to  a  public  nuisance,  and  an  action  would  lie  for  damages  where  an  ex- 
plosion occurred  causing  injury.  Nelson,  C.  J.,  citing  People  v.  Sands, 
supra,  says,  "Upon  the  principle  that  nothing  will  be  intended  or  in- 
ferred to  support  an  indictment,  the  court  said,  for  aught  they  could 
see,  the  house  may  have  been  one  built  and  secured  for  the  purpose 
of  keeping  powder  in  such  a  way  as  not  to  expose  the  neighborhood ;" 
and  he  cites  several  authorities  which  uphold  the  doctrine  that  where 
gunpowder  is  kept  in  such  a  place  as  is  dangerous  to  the  inhabitants  or 
passengers  it  will  be  regarded  as  a  nuisance.  The  case  of  People  v. 
Sands  is  not  therefore  controlling  upon  the  question  of  negligence. 

Fillo  v.  Jones,  2  Abb.  Dec.  121,  is  also  relied  upon,  but  does  not  sus- 
tain the  doctrine  contended  for;  and  it  is  there  held  that  an  action 
lor  damages  caused  by  the  explosion  of  fireworks  may  be  maintained 
upon  the  theory  that  the  defendant  was  guilty  of  a  wrongful  and  un- 
lawful act,  or  of  default,  in  keeping  them  at  the  place  they  were  kept, 
because  they  were  liable  to  spontaneous  combustion  and  explosion,  and 
thus  endangered  the  lives  of  persons  in  their  vicinity,  and  that  the  in- 
jury was  occasioned  by  such  spontaneous  combustion  and  explosion. 

It  is  apparent  that  negligence  alone  in  the  keeping  of  gunpowder  is 
not  controlling,  and  that  the  danger  arising  from  the  locality  where 
the  fireworks  or  gunpowder  are  kept  is  to  be  taken  into  consideration 
in  maintaining  an  action  of  this  character.  We  think  that  the  request 
to  charge  was  too  broad  and  properly  refused.  The  charge,  however, 
should  have  been  in  conformity  with  the  rule  herein  laid  down,  and 
for  the  error  of  the  judge  in  the  charge  the  judgment  should  be  re- 
versed and  a  new  trial  granted,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 


ABATEMENT  381 


HI.  Abatement* 


JONES  v.  WILLIAMS. 

(Court  of  Exchequer,  1843.     11  Mees.  &  W.  176.) 

PARKS,  B.  A  rule  was  obtained  in  this  case,  by  Mr.  Erie,  for  judg- 
ment non  obstante  veredicto  on  the  fourth  plea  found  for  the  defend- 
ant, and  argued  a  few  days  ago.  This  plea,  to  an  action  of  trespass 
quare  clausum  fregit,  stated,  that  the  defendant,  before  and  at  the 
said  time  when,  etc.,  was  possessed  of  a  dwelling  house,  near  the  locus 
in  quo,  and  dwelt  therein;  and  that  the  plaintiff,  before  and  at,  etc., 
injuriously  and  wrongfully  permitted  and  suffered  large  quantities  of 
dirt,  filth,  manure,  compost,  and  refuse,  to  be,  remain,  and  accumulate 
on  the  locus  in  quo,  by  reason  whereof  divers  noxious,  offensive,  and 
unwholesome  smells,  etc.,  came  from  the  close  into  the  defendant's 
dwelling-house;  and  then  the  defendant  justifies  the  trespass,  by  en- 
tering in  order  to  abate  the  nuisance,  and  in  so  doing  damaging  the 
wall,  and  digging  up  the  soil. 

The  question  for  us  to  decide  is  whether  this  plea  is  bad  after  ver- 
dict ;  and  we  are  of  opinion  that  it  is. 

The  plea  does  not  state  in  what  the  wrongful  permission  of  the  plain- 
tiff consisted;  whether  he  was  a  wrongdoer  himself,  by  originally 
placing  the  noxious  matter  on  his  close,  and  afterwards  permitting  it 
to  continue ;  or  whether  it  was  placed  by  another,  and  he  omitted  to 
remove  it;  or  whether  he  was  under  an  obligation,  by  prescriptive 
usage  or  otherwise,  to  cleanse  the  place  where  the  nuisance  was,  and  he 
omitted  to  discharge  that  obligation,  whereby  the  nuisance  was  created. 
The  proof  of  any  of  these  three  circumstances  would  have  supported 
the  plea;  and  if  in  none  of  the  three  cases  a  notice  to  remove  the 
nuisance  was  necessary  before  an  entry  could  take  place,  the  plea  is 
good;  but,  if  notice  was  necessary  in  any  one,  the  plea  is  bad,  by 
reason  of  its  neither  containing  an  averment  that  such  a  notice  was 
given,  or  showing  that  the  continuance  was  of  such  a  description  as  not 
to  require  one. 

It  is  clear,  that  if  the  plaintiff  himself  was  the  original  wrongdoer, 
by  placing  the  filth  upon  the  locus  in  quo,  it  might  be  removed  by  the 
party  injured,  without  any  notice  to  the  plaintiff;  and  so,  possibly,  if 
by  his  default  in  not  performing  some  obligation  incumbent  on  him, 
for  that  is  his  own  wrong  also;  but  if  the  nuisance  was  levied  by 
another,  and  the  defendant  succeeded  to  the  possession  of  the  locus  in 
quo  afterwards,  the  authorities  are  in  favor  of  the  necessity  of  a  no- 

«  For  discussion  of  principles,  see  Chapin  on  Torts,  §  117. 


382  NUISANCE 

tice  being  given  to  him  to  remove,  before  the  party  aggrieved  can  teke 
the  law  into  his  own  hands. 

We  do  not  rely  on  the  decision  in  The  Earl  of  Lonsdale  v.  Nelson, 
2  B.  &  C.  302,  as  establishing  the  necessity  of  notice  in  such  a  case, 
for  there  much  more  was  claimed  than  a  right  to  remove  a  nuisance, 
viz.,  a  right  to  construct  a  work  on  the  plaintiff's  soil,  which  no  au- 
thority warranted;  but  Lord  Wynford's  dictum  is  in  favor  of  this 
objection,  for  he  states  that  a  notice  is  requisite  in  all  cases  of  nuisance 
by  omission,  and  the  older  authorities  fully  warrant  that  opinion, 
where  the  omission  is  the  nonremoval  of  a  nuisance  erected  by  an- 
other. Penruddock's  Case,  5  Rep.  101,  shows  that  an  assize  of  quod 
permittat  prosternere  would  not  lie  against  the  alienee  of  the  party 
who  levied  it  without  notice.  The  judgment  in  that  case  was  affirmed 
on  error;  and  in  the  King's  Bench,  on  the  argument,  the  judges  of 
that  court  agreed  that  the  nuisance  might  be  abated,  without  suit,  in 
the  hands  of  the  f eof ee ;  that  is,  as  it  should  seem,  with  notice ;  for 
in  Jenkins's  Sixth  Century,  case  57  (no  doubt  referring  to  Penruddock's 
Case),  the  law  is  thus  stated :  "A.  builds  a  house,  so  that  it  hangs  over 
the  house  of  B.,  and  is  a  nuisance  to  him.  A.  makes  a  feoffment  of 
his  house  to  C.,  and  B.  a  feoffment  of  his  house  to  D.,  and  the  nuisance 
continues.  Now  D.  cannot  abate  the  said  nuisance,  or  have  a  quod 
permittat  for  it,  before  he  makes  a  request  to  C.  to  abate  it,  for  C.  is 
a  stranger  to  the  wfong;  it  would  be  otherwise  if  A.  continued  his 
estate,  for  he  did  the  wrong.  If  nuisances  are  increased  after  several 
feoffments,  these  increases  are  new  nuisances,  and  may  be  abated 
without  request." 

We  think  that  a  notice  or  request  is  necessary,  upon  these  authori- 
ties, in  the  case  of  a  nuisance  continued  by  an  alienee ;  and  therefore 
the  plea  is  bad,  as  it  does  not  state  that  such  a  notice  was  given  or 
request  made,  nor  that  the  plaintiff  was  himself  the  wrongdoer,  by 
having  levied  the  nuisance,  or  neglected  to  perform  some  obligation, 
by  the  breach  of  which  it  was  created. 

Lord  ABINGER,  C.  B.,  observed  that  it  might  be  necessary  in  some 
cases,  where  there  was  such  immediate  danger  to  life  or  health  as 
to  render  it  unsafe  to  wait,  to  remove  without  notice;  but  then  it 
should  be  so  pleaded;  in  which  the  rest  of  the  court  concurred. 

Rule  absolute. 


CONSPIRACY  383 


CONSPIRACY  * 

COLLINS  v.  CRONIN. 

(Supreme  Court  of  Pennsylvania,  1887.    117  Pa.  35,  11  Atl.  869.) 

PAXSON,  J.  The  plaintiff  in  error  has  misapprehended  the  vital  point 
in  his  case.  The  learned  judge  below  did  not  lay  down  the  broad  prin- 
ciple that  "there  can  be  no  recovery  against  one  only,  in  an  action  on  the 
case  in  the  nature  of  a  conspiracy  brought  against  two  or  more."  What 
he  did  say  was  this:  "That  fraud  is  never  to  be  presumed,  but  must 
always  be  proven  by  evidence  that  is/clear  and  satisfactory  to  the  jury. 
And  this  action  is  founded  upon  the  alleged  fraud  of  the  defendant. 
In  order  that  the  plaintiff  can  recover  in  this  action,  they  must  find 
that  the  evidence  established  by  satisfactory  proof  the  fact  that  the 
defendants  were  guilty  of  fraud;  and  this  must  be  true  of  both  de- 
fendants, as  both  John  H.  and  Cornelius  Cronin  must  have  intended 
a  fraudulent  act,  in  order  to  entitle  the  plaintiff  to  recover."  The 
plaintiff  has  assigned  this  instruction  for  error,  and  has  cited  Laverty 
v.  Vanarsdale,  65  Pa.  507,  and  some  other  cases,  in  support  of  his  posi- 
tion. In  our  opinion,  he  is  not  sustained  by  any  of  them.  Laverty  v. 
Vanarsdale  is  perhaps  the  strongest,  and  that  does  not  touch  the  case. 
That  was  an  action  on  the  case  in  the  nature  of  a  conspiracy,  brought 
by  Laverty  against  Vanarsdale  and  10  others  for  injuring  him  in  his 
business  as  a  school-teacher.  The  allegation  was  that  the  defendants, 
for  the  purpose  of  preventing  the  plaintiff  from  being  engaged  as  a 
school-teacher  for  another  year,  willfully  and  maliciously  prepared, 
signed,  and  induced  others  to  sign,  a  petition  representing  that  he  was 
unfit  for  a  teacher ;  and  it  was  held  by  this  court,  in  reversing  the  court 
below,  that  "where  the  action  is  brought  against  two  or  more,  as  con- 
cerned in  the  wrong  done,  it  is  necessary,  in  order  to  recover  against 
all  of  them,  to  prove  a  combination  or  joint  act  of  all.  For  this  pur- 
pose it  may  be  important  to  establish  the  allegation  of  a  conspiracy. 
But,  if  it  turn  out  at  the  trial  that  only  one  was  concerned,  the  plain- 
tiff may  still  recover,  the  same  as  if  such  one  had  been  sued  alone. 
The  conspiracy  or  combination  is  nothing  so  far  as  sustaining  the  ac- 
tion goes;  the  foundation  of  it  being  the  actual  damage  done  to  the 
party."  And  Hutchins  v.  Hutchins,  7  Hill  (N.  Y.)  104;  Jones  v. 
Baker,  7  Cow.  (N.  Y.)  445 ;  and  Parker  v.  Huntington,  2  Gray  (Mass.) 
124, — were  cited  by  Mr.  Justice  Read  in  support  of  his  text.  This  is 
perfectly  good  law.  Under  the  facts  of  that  case,  the  combination  or 
conspiracy  was  nothing.  One  of  the  defendants  could  have  traduced 

i  For  discussion  of  principles,  see  Chapin  on  Torts,  §  118. 


384  CONSPIRACY 

the  character  of  the  plaintiff  as  a  teacher  as  well  as  a  number  of 
them;  and,  if  he  had  done  so,  he  was  clearly  liable  in  damages  for 
his  own  act,  even  although  the  other  defendants  had  no  part  in  it.  It 
was  an  act  capable  of  being  performed  by  one  defendant  alone.  But 
in  the  case  in  hand  the  conspiracy  was  everything.  Without  it  the 
plaintiff  has  no  cause  of  action,  for  the  plain  reason  that  the  acts 
charged  in  the  declaration  were  of  such  a  nature  that  they  could  not 
be  committed  by  one  defendant  alone.  It  was  alleged  that  Cornelius 
Cronin  had  confessed  fraudulent  judgments  to  his  son  John  for  the 
purpose  of  hindering,  delaying,  and  cheating  the  creditors  of  the  for- 
mer ;  that  execution  had  been  issued  upon  these  fraudulent  judgments, 
and  his  property  sold,  and  bought  in  by  his  son,  at  much  less  than  its 
value.  This,  if  true,  would  have  been  a  fraud  upon  the  plaintiff  and 
other  creditors.  The  jury  found  that  it  was  not  true,  under  proper  in- 
structions from  the  court;  for  how  could  fraudulent  judgments  spring 
into  existence  between  a  father  and  son  without  collusion,  combina- 
tion, and  conspiracy?  And,  if  the  judgments  were  bona  fide,  then 
the  son  was  merely  using  his  legal  remedies  to  collect  an  honest  debt 
due  from  his  father.  He  had  as  much  right  to  do  this  as  had  any 
other  creditor,  and  no  action  lies  against  him  therefor.  The  case  is 
too  plain  for  argument.  Judgment  affirmed.2 

a  Compare  Macaulay  Bros.  v.  Tierney,  supra,  p.  239. 


WB8T  PUBLISHING  CO.,   PRINTBRB,   ST.  PAUL.  IfOOL 


UC  SOUTHERN 


